PPLC offers:
- Global Protection for Patents, Copyrights and Trademarks
- Seasoned, Smart and Aggressive Trial Attorneys
- Protecting & Defending Ideas for Over 30 Years
- Affordable Rates
- Lower Costs for Small Businesses & Individuals
Contact PPLC for
More Information
Frequently Asked Questions Regarding Copyrights
- What is a Copyright?
- How is a Copyright different from a Patent or Trademark?
- What things can be protected by a Copyright?
- What things cannot be protected by a Copyright?
- How do I get a Copyright?
- Does my work have to be published to be protected?
- Should I register my copyright?
- How do I register my copyright?
- May I transfer any of my copyrights?
- Is there any notice that must be placed on copyrighted works?
- Who owns the Copyright if I hire someone to create Copyrightable works?
- How Long Is a Work Copyright-Protected in the United States?
- How Long Is a Work Copyright-Protected Worldwide?
- What Is the “Public Domain”?
- Is there such a thing as an international copyright?
- What can I do if someone is copying my copyrighted work without my permission?
- Can my business or corporate attorney file for Copyright registration?
- What is a Copyright?
A Copyright is basically a right to exclude others from copying. In the U.S. it is a right first created by the U.S.
Constitution and enumerated by the U.S. Copyright Act. A Copyright has two parts: (1) ownership and (2) the thing protected.
A copyright in a work of authorship immediately becomes the property of the author who created the work. Only the author or
those getting their rights from the author can rightfully claim copyright. A copyright must also be attached to something,
the thing protected by the Copyright. The thing must be an original work of authorship fixed in a tangible medium of expression.
Take, for example, a copyrighted book. The book is the thing protected by the copyright and it is the owner of the copyright,
usually the author or publisher, that has the right to exclude others from copying the book. Copyrights are often owned by
business organizations but can also be owned by a governmental entity, a religious organization, a non-profit, etc.
Top
- How is a Copyright different from a Patent or Trademark?
As explained above, copyrights can attach to many forms of human expression but inventions cannot be protected by
Copyright Law. For example, suppose you invented a novel computer mouse and wrote a book about how to build it.
A copyright attached to the book would prohibit others from copying the book, but would not prohibit others from using
the book to build and sell copies of your novel mouse. Whereas a Patent on the function of the mouse would
prohibit others from making, selling and using copies of the mouse, but would not stop others from copying the book. As
for Trademarks,
in general they are marks placed upon products to indicate the source of the products to a purchaser. They are used
by a maker and/or seller of a product to distinguish the product from the products of others. Trademarks do not protect
human expression nor do they protect inventions.
Top
- What things can be protected by a Copyright?
In general, a copyright can protect many forms of human expression, but in order for the expression to be protected
it must have some degree of originality. Examples of protected human expressions are: literary, dramatic, musical,
and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Other examples
of protected human expression are: the writings, artwork, and photographs on a website; original photographs; diaries;
architectural works such as the design of a building embodied in any tangible medium of expression, including a building,
architectural plans, or drawings.
Top
- What things cannot be protected by a Copyright?
As explained above, inventions and trademarks are not protected by copyright, although logo artwork that contains
sufficient authorship is protected. Other things that are not protected are: domain names, recipes, names, titles,
slogans, and short phrases. Also, copyright protection cannot attach to data, facts, ideas, systems, or methods of
operation, although it may protect the way these things are expressed.
Top
- How do I get a Copyright?
A copyright attaches automatically to an expression at the moment it is fixed in a tangible medium of expression. For
example, a copyright does not attach to a sculpture while it is only in the mind of the sculptor, even if he describes it
to others before making it, but it does attach automatically the moment he forms the sculpture in a tangible medium, such a
stone, or even paper mache. The only step needed to obtain a copyright is to fix your expression in a tangible medium of
expression. As another example, if you write an original article and publish it on the Internet, it is fixed in a tangible
medium so a copyright owned by you has probably attached to the article.
Top
- Does my work have to be published to be protected?
Publication is not necessary for copyright protection. Copyright covers both published and unpublished expressions.
Top
- Should I register my copyright?
It is a common misconception that one can get a copyright only by officially registering it, but not so. As explained
above, a copyright attaches at the moment that an expression, protectable by copyright, is fixed in a tangible medium. A
copyright can exist without registration, but there are extremely valuable benefits to registering your copyright. The benefits
include creating a presumption as to ownership, and the right to recover statutory damages and attorney’s fees for all
infringements that take place after registration. In case someone infringes your copyright (copies your protected expression),
your ability to recover statutory damages and attorneys’ fees is a very big axe you can wield in your fight with the infringer.
A registered copyright also notifies potential infringers that you are serious about protecting your copyrights, and it also
tends to increase the value of both the work and the business which owns it.
Top
- How do I register my copyright?
In the U.S. it can be done by filling out forms online and sending electronic copies of the work to be registered. We
encourage our clients to register their copyrights themselves but only after first counsulting with an intellectual property attorney.
We also caution our clients to read all the instructions and explanations
very carefully, and if they have any questions to contact an intellectual property attorney. There can be drastic
consequences if the forms are not filled-out correctly.
Since we have practiced Copyright Law for many years, we are well aware of the potential problems in filling out
registration applications. We will be happy to assist you in any way. We can prepare and file the registration forms for
you, or advise you on forms you have filled-out. If you have multiple works of the same type, we can advise you how to fill
out one registration form; from then on you can do your own.
Top
- May I transfer any of my copyrights?
As a copyright owner, your exclusive rights are:
- to reproduce the copyrighted work in copies or phonorecords (such as compact discs);
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and
other audiovisual works, to perform the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a motion picture or other audiovisual work, to
display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Any or all of a copyright owner's exclusive rights or any subdivision of those rights may be transferred to another
party, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of
the copyright or such owner's duly authorized agent. Such transfers are comparatively rare in the U.S. and are almost
never knowingly engaged in by European artists. More often copyrights are licensed to others in return for payment of
royalties
If you wish to grant a license of some or all of your copyrights to another, or if you wish to obtain a license
to copyrights owned by another, we will be happy to assist you in creating any sort of transfer agreement you want.
Top
- Is there any notice that must be placed on copyrighted works?
For works first published on or after March 1, 1989, use of the copyright notice is optional. Before March 1, 1989, the
use of the notice was mandatory on all published works. Omitting the notice on any work first published before that date
could have resulted in the loss of copyright if corrective steps were not taken within a certain amount of time. Nevertheless
use of the notice is always a good idea for several reasons. Use of the notice informs the public that a work is protected
by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work
is infringed, if the work carries a proper notice, the court will not give any weight to a defendant’s claim that the
defendant did not realize that the work was protected. As further explained below, an innocent infringement defense can
result in a reduction in damages that the copyright owner would otherwise receive.
The notice for visually perceptible copies of a work should include first the universal copyright symbol © or the
word “Copyrighted” or the abbreviation “Copr.” followed by the year in which the work was first published followed by the
name of the owner of the copyright, for example: © 2012 Patent Power Law Center. The appropriate notices vary with other
types of works. For example for phonorecords, the © is replaced by the letter “P” in a circle.
The copyright notice has never been required on unpublished works. An appropriate notice for an unpublished work might
be "Unpublished © 2012 Patent Power Law Center".
Top
- Who owns the Copyright if I hire someone to create Copyrightable works?
One common misconception with copyrights is that, if you pay an independent contractor to create a work, then
you own the work. This is not correct. Generally, a work for hire agreement must be signed by the independent
contractor prior to creation of the work for this to be the case. At times a work for hire agreement cannot
transfer rights and in such cases a written assignment of rights is required.
In the case of works “made for hire”, where an artist has created the work while in his/her capacity of employee,
the employer and not the employee is considered to be the author and copyright holder. Where a work was created jointly
by more than one artist, the authors of a joint work are all co-owners of the copyright in the work, unless there is
an agreement to the contrary. Copyright in each separate contribution to a periodical or other collective work is distinct
from copyright in the collective work as a whole and vests initially with the author of each contribution.
The mere ownership of a book, manuscript, painting, or any other work does not give the possessor of that work its
copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of
itself convey the copyright or any interest in the copyright. This remains in the possession of the creator and is often
referred to as the underlying artist’s copyright, distinct from the physical object which embodies it.
If you have a copyright ownership dispute, we can help.
Top
- How Long Is a Work Copyright-Protected in the United States?
Works created on or after January 1, 1978: A work that is created (fixed in tangible form for the first time) on or
after January 1, 1978, is automatically protected from the moment of its creation and is given a term of copyright
protection enduring for the lifetime of the artist plus an additional 70 years after the artist's death. In the case
of "a joint work prepared by two or more artists who did not work for hire," the term lasts for 70 years after the
last surviving artist's death. For works made for hire, and for anonymous and pseudonymous works (unless the artist's
identity is revealed in Copyright Office records), the duration of copyright will be 95 years from first publication or
120 years from creation, whichever is shorter.
Works originally created before January 1, 1978, but not published or registered by that date: These works have been
automatically brought under the statute and are now given federal copyright protection. The duration of copyright in
these works will generally be computed in the same way as works created on or after January 1, 1978, namely, the
life-plus-70 or 95/120-year terms will apply to them as well. The law provides that in no case will the term of copyright
for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the
term of copyright will not expire before December 31, 2047.
Works originally created and published or registered before January 1, 1978: Under the law in effect before 1978,
copyright was secured either on the date a work was published with a copyright notice or on the date of registration if
the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the
date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act
of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978
copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection
of 75 years.
The Sonny Bono Copyright Extension Act: The Sonny Bono Copyright Extension Act, enacted on October 27, 1998, further
extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a total term
of protection of 95 years from the date of first U.S. publication if the work was published before January 1, 1978. For all
works created or first published after January 1, 1978, the term of protection was extended by 20 years from the previous
term of protection of the lifetime of the artist plus 50 years, to the lifetime of the artist plus 70 years.
Unpublished works: All works that are unpublished, regardless of the nationality of the author, are protected in the
United States. Works that are first published in the United States or in a country with which the United States has a
copyright treaty or that are created by a citizen or domiciliary of a country with which the United States has a copyright
treaty are also protected.
Top
- How Long Is a Work Copyright-Protected Worldwide?
The term of copyright protection varies from country to country around the world, as determined by national
legislation. In the European Union countries, the term of protection is the lifetime of the artist plus 70 years,
except in Spain where the term is life of the artist plus 80 years, and in France where the two world wars have served
to give artists whose careers were affected by the wars a cumulative term of life of the artist plus 84 years
and 203 days.
Top
- What Is the “Public Domain”?
A work that is no longer copyright protected is considered to be “in the public domain”. It should be noted,
however, that photographs of works of art in the public domain may themselves be copyrighted and will likely require
a license for publication, even though the public domain works which are the subject of the photos are no longer
protected.
Top
- Is there such a thing as an international copyright?
There is no such thing as an "international copyright" that will automatically protect an author's works throughout
the entire world. Generally speaking, protection against unauthorized use in a particular country depends on the national
laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these
conditions have been greatly simplified by international copyright treaties and conventions.
The most significant international copyright treaty is the Berne Convention for the Protection of Literary and Artistic
Works which has about 170 members, including the United States. Under this treaty a member country must extend the same
treatment to the works of citizens of other member countries as are enjoyed by its own citizens. It is the “golden rule”
of copyrights - “Do unto others as you would have them do unto you.” In other words, the U.S. makes available to its
citizens copyright protection in a foreign member of Berne according to the laws of that foreign member. Likewise, foreign
works covered by Berne will receive copyright protection under the U.S. copyright law. However, It is important to know
that the Berne treaty does not per se confer any rights. In other words, one cannot sue someone under Berne because the
laws of the individual country in which protection is sought still control. Nevertheless, if that country happens to be a
Berne member, it will be obligated to protect the foreign work to some extent. As a word of caution, many countries are not
members of the Berne treaty, and some countries offer little or no copyright protection at all.
The Universal Copyright Convention of September 1952 ("UCC Agreement") was created to provide an alternative to the
Berne Convention. The United States ratified the UCC in 1955. The UCC imposes fewer substantive requirements than the Berne
Convention. For countries that are members of both the Berne Convention and the UCC, in cases of conflict between the two
conventions the Berne Convention prevails.
The Agreement on Trade-Related Aspects of Intellectual Property Rights of April 15, 1994 ("TRIPS Agreement") became an
annex to the agreement establishing the World Trade Organization (WTO). In addition to providing for international minimum
standards of protection in the area of intellectual property, TRIPS also establishes standards for the enforcement of such
rights. It also restores U.S. copyright to foreign works which were deemed to have fallen into the public domain by virtue
of their failure to fulfill the formalities previously required by U.S. Copyright Law.
The World Intellectual Property Organization Copyright Treaty of December 23, 1996 ("WIPO Copyright Treaty") also supplements
the provisions of the Berne Convention to provide stronger international protection to copyrighted material in the digital
environment.
Please know that we are able to secure protection for your works worldwide; we will be happy to help.
Top
- What can I do if someone is copying my copyrighted work without my permission?
There are no copyright enforcement police (although maybe there should be) so the burden falls solely on the owner of a
copyright to enforce it against infringers. Generally, anyone who violates any of the exclusive rights of a copyright owner
is an infringer. The exclusive rights are listed in Answer #9 above.
It is also infringement if an author’s rights of attribution or integrity are
violated. The right of “attribution”
is also called “naming rights”; it is the right of an author of a limited edition work of visual art to (1) claim authorship
of that work, and (2) to prevent the use of his or her name as the author of any work of visual art which he or she did
not create. The right of “integrity” is basically the right of an author of a limited edition work of visual art to prevent:
(1) any intentional distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor
or reputation, (2) any intentional or grossly negligent destruction of a work of recognized stature, and (3) the use of his
or her name as the author of such a work in the event the work is distorted, mutilated, or otherwise modified causing damage
to the author’s honor or reputation.
If you find or suspect infringement of your copyright, a typical first step is to send the infringer a cease and
desist letter, although at times it is best to go ahead and to file a lawsuit as a first step. If you are not satisfied by
the response to your letter, the typical next step is to file a formal complaint against the infringer in federal court - it
cannot be filed in state court. Filing the complaint and serving (e.g., delivering) a copy on the infringer starts a lengthy
lawsuit that could span several years. You should also be aware that copyright infringement lawsuits are very expensive for
all parties involved. Most often the purpose of such a lawsuit is to recover money from the infringer and get an injunction.
An injunction is usually desirable because then the infringer will be in contempt of court for infringements that occur after
the injunction is issued - federal judges have an enormous range of powers, so it is not wise to be in contempt of court.
As for money, you can sue infringers for: (1) actual damages and profits - the actual damages suffered
by you as a result
of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account
in computing the actual damages; or (2) instead of actual damages and profits, you may elect, at any time before final judgment
is rendered, to recover statutory damages for all infringements involved in the lawsuit. Generally statutory damages can range
from $750 to $30,000 for each instance of infringement. If the court finds that the infringement was committed willfully, the
court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. If the court finds that
the infringer had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion
may reduce the award of statutory damages to a sum of not less than $200.
Full costs and attorneys’ fees may also be awarded to either side in the discretion of the Court, so it is advisable to
conduct a thorough investigation of the facts before starting a copyright infringement lawsuit.
If you are involved in any copyright litigation, if you have been accused of copyright infrinement or want to stop another from
infringing your copyrights, we encourage you to seek the advice of an attorney experienced in copyright litigation immediately
because important deadlines exist. Please know that we are copyright experienced, aggressive litigators
and can represent you anwhere in the U.S., and can assist you in finding appropriate counsel if the litigation is
elsewhere.
Top
- Can my business or corporate attorney file for Copyright registration?
Yes. There is no need for a special license to practice Copyright Law, but it is a very complex field of law, especially when
dealing with foreign rights and protections under the multiple treaties referred-to above in Answer #15. So be sure
to pick a law firm with lots of experience in Copyright Law.
We have years of experience in the field of Copyright Law, and we will be happy to assist you in
any way.
Top