Copyright FAQ

Copyrights, like patents, have specific provisions in the United States Constitution. Chapter 17 of the United States Code is the copyright statute. If the author owns his or her own copyright, the copyright lasts for the author's life plus 70 years. On a work not owned by the author, the owner of the copyright has either 95 years after publication or 120 years after creation, whichever is shorter.

A major change in the copyright law occurred with the decision in Feist Publications v. Rural Telephone Service Company, 499 U.S. 340 (1991). A minimal spark of creativity is required to obtain a copyright now. While this requirement is nowhere as strenuous as the requirement for a patent, it is a major increase in the requirements for getting a copyright. Thus, copyrights are somewhat more difficult to obtain.

At anytime, it is possible to claim a copyright interest in a created item by marking the item with copyright, a year and a name. One form of proper copyright notice appears at the end of this paper. Notice is preferable, but not required, to achieve protection of the item. Maximum protection under the copyright laws is obtained, when the application for copyright is filed within three months of the first publication of the item sought to be copyrighted.

If the copyright application is filed within three months of the publication date of the item with a proper copyright notice, the copyright holder can recover from an infringer from the date of publication, most likely including punitive damages. If the copyright application is filed later than three months after publication, the copyright holder can, in most cases, only recover severe punitive damages under the federal law, from infringers from the date of copyright issuance. Thus, it is highly desired to mark all qualifying materials copyright in the appropriate manner as soon as possible and file within the appropriate time.

Prior to 1988, copyright notice was mandatory in order to get copyright protection. As a result of this requirement, Dr. Martin Luther King Jr.'s heirs were not to have a copyright on the "I Have a Dream" speech. Advance copies of the speech were circulated without a copyright notice in 1963. Therefore, under the old copyright law, copyright was waived. Anyone may now use that speech for any purpose, without fear of copyright infringement. If that occurred under the new copyright law, the copyright would have attached automatically upon creation of the speech. His would own all rights to the speech and require a royalty for any performance thereof.

If two different people come up with the same idea, each independently of the other, both are entitled to a copyright. One may not exclude the other. On the other hand, a patent or a trademark is exclusive.

Copyright protection applies to literary works, musical works (including any words), dramatic works (including any music), pantomimes, choreography, pictorials, sculptural works, graphic works, motion pictures, sound recorders, solid state circuits and computer programs. The copyright provides a person the exclusive right to reproduce a work, prepare derivative works thereof, sell it, perform it publicly and display it publicly. For example, it is not fair use of a copyrighted item to play a radio station loudly enough in a business establishment for patrons to hear. In so doing, the copyright is infringed. One must purchase the right to do this from the American Society of Composers and Performers or a similar organization in the United States.

Fair use of a copyrighted item is not an infringement. Fair use includes criticism, comment, news reporting, teaching, scholarship or research. Factors considered in determining fair use are the purpose and nature of the use, the nature of the work and the portion used. The effect of the use on the value of the work is also considered.

Copyrights developed as a privilege for printers in England shortly after the refinement of the printing press. However, copyrights were modified to protect the authors. Copyrights have also been used in the past as a means of censorship.

The first United States Copyright Act of 1790 covered only maps, charts and books. Prior to creation of the United States Constitution, before publication of an item, state law copyright jurisdiction applied — while after publication, federal law jurisdiction applied.

The Copyright Act was modified to cover specific classes of works and modified last in 1978. It now includes prints by etching or engraving, musical composition, public performance of dramatic works, photographs, paintings, drawings, statues, models, designs of fine art, the right to dramatize nondramatic literary works and the right to public performance. Also, 11 categories of protected works — including derivative works, motion pictures, sound recordings, records, computer programs and similar matters — have since been added.

What is required for a copyright is at least some originality. The author must contribute something more than a merely trivial variation. The copyright automatically vests in the author at the time of creation. There is no application process for a copyright to exist as there is for patent or a trademark. However, application for registration does provide significant protection, and avoids abandonment of rights in an otherwise copyrightable creation.

The key test for copyright infringement is whether the average person would consider the second article as being from the same area as the first article. It is necessary to show that the infringer first had access to and knowledge of the work, and then created the reproduction of the work, to constitute infringement of that work.

Function of the use of the copyrighted material is also a part of copyright infringement. If recipes from a copyrighted recipe book are used to make a second recipe book, there is definitely infringement. If a recipe book is used to provide a history of cooking, that may or may not be an infringing action depending on the situation defined by all of the circumstances surrounding the use of the copyrighted material.

The Register of Copyrights, as a division of the Library of Congress, handles the routine functions associated with the copyright law. The Register of Copyrights serves the same function for copyrights that the Patent and Trademark Office serves for patents and trademarks.

Ownership of the copyright on a work belongs to the author or creator, without a countermanding agreement. This agreement should be in writing. For example, if a person hires a computer specialist to write a program for him or her, that person should obtain a written agreement that he or she will own the copyright. Such action will permit that person to make copies of the program or modify without permission of the computer specialist.

Contact the Law Office of Mathew R. P. Perrone, Jr., if you have an idea. We will ensure that you understand your protection under copyright law.

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