Copyrights protect “original works of authorship.” This includes literature, music, plays, and other types of artistic works. Copyright protection arises automatically the moment that a work is created—the first time it appears in a fixed form. A copyright is the property of its author or creator, but that right may pass to another, such as when that work is “made for hire” (i.e., prepared by an employee within the scope of employment, or specially ordered or commissioned under certain circumstances).
Only an original work will qualify for copyright protection. Thus, mere compilations of information that is common property or taken from public documents (e.g., calendars, telephone books, lists of ingredients) are not eligible. Names, slogans, and familiar symbols or designs also are not copyrightable (though they may qualify for trademark protection).
The work also must be fixed in a tangible form of expression. A musical performance, work of literature, speech, or choreographic performance that has been recorded may be copyrighted (thereby prohibiting others from reproducing, displaying or performing the work publicly), but a work that has not been recorded or otherwise “fixed in a tangible form” such as an impromptu speech or an “improv” performance may not. Ideas, methods, or discoveries may not be copyrighted (though they might be patentable), but the fixed expression of such ideas might be (e.g., illustrations of a patented invention).
A copyright owner has certain exclusive legal rights to: (1) make and distribute copies of the copyrighted work; (2) prepare derivative works; (3) perform or display the work publicly; or (4) authorize others to do any of the above. But these exclusive rights are not absolute. One significant limit on them is the “Fair Use Doctrine,” which allows for others to use copyrighted works where the use is for “purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research.” 17 U.S.C. § 107.
- Term: Copyright protection for works created after January 1, 1978 lasts for a term of the author’s life plus 70 years after his or her death. Copyrights for works made for hire or anonymous or pseudonymous works last for the shorter of 95 years from publication or 120 years from creation.
- Publication: Although a work does not need to be published in order for a copyright to attach, publication provides public notice of the copyright, and will prevent an infringer from claiming ignorance as a defense to suit. A proper copyright notice for visually perceptible copies of a work must include the symbol “©” or the word “copyright” (or “copr.”), the year of first publication, and the name of the owner of the work—g., “© 2018 John Smith.”
- Registration: Although a copyright may be registered at any time during its life, prompt registration may entitle an owner to a presumption of validity or the potential recovery of statutory damages and attorney’s fees in an infringement suit.
Copyrights are personal property and may be transferred, assigned, or bequeathed. Transfers of some or all of a copyright owner’s exclusive rights must be made in writing, though transfers of nonexclusive rights need not be. Transfers also do not need to be recorded in the Copyright Office, but recording can provide advantages such as notice and protection against third party claimants or infringers.
J.A. Lindeman & Co. – Advocates for Innovation – Advisors on Invention℠
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