Q.  What is copyright, and what do I need to do to get it?

A.  Copyright, in its descriptive sense, refers to the right to make copies.  In its broadest sense, copyright refers to a bundle of rights:  (1) the right to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) 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; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) 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 (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.  17 U.S.C. § 106.   Other rights include the right of attribution and right to prevent mutilation of a visual work, 17 U.S.C. § 106A. 

A copyright automatically comes into existence the moment the author fixes his or her work in some tangible form.  For works published before March 1, 1989, the publication of a work without the statutorily required copyright notice automatically injected the work into the public domain, resulting in the loss of the copyright in the work.  Since March 1, 1989, the use of a copyright notice has been optional.  

For a copyright to exist, the work must be (i) “original” and (ii) “fixed.”   The 1976 Act does not contain a definition of "originality," but case law addressing this issue has focused on two key factors in making this determination: (1) independent creation (i.e. the work was not copied) and (2) a modest quantum of creativity.  Notably, an "original" work need not necessarily be new, or even novel. It need only be original with the owner.  In fact, if two authors independently create works that are similar to each other, each author would be entitled to copyright protection in his or her work.

The Copyright Act defines fixation as follows:

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

17 U.S.C. § 101.  Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 

For works created on or after January 1, 1978, a copyright subsists for the life of the author plus 70 years.  Copyright in works created by employees for their employers lasts for 95 years from the date of publication, or 120 years from the date of creation, whichever occurs first.       

Although registration of a work is not required for copyright protection, there are certain benefits to registration.  Registration is a prerequisite to filing a copyright infringement suit.  Further, if the work is timely registered, the copyright owner may be entitled to statutory damages up to $150,000, plus attorney fees and court costs, as opposed to just actual damages (e.g. the losses caused by the infringement and profits unearned). To be timely registered, published works must be registered (i) within three months of the date of first publication or (ii) prior to the date the copyright infringement first began.  For unpublished works, the work must be registered before the infringement began.

Since the First Copyright Act of 1790, there have been numerous changes in U.S. Copyright Law.  These include the passage of the 1909 Act, the 1976 Act, the Semiconductor Chip Protection Act of 1984, the Berne Convention Implementation Act of 1988, the Digital Millennium Copyright Act, and numerous other amendments to the 1976 Act.  Accordingly, different pieces of legislation may be applicable to a work depending on when the work was published or created and the subject matter at hand.  For help with registering, transferring, protecting or licensing a copyright, navigating third party copyright claims, or analyzing copyright issues in the online world, business proprietors should consider consulting with an attorney.
Last updated July 10, 2008.


Allen M. Lee  Mr. Lee’s practice focuses on business, corporate and intellectual property matters, including the creation, protection and exploitation of intellectual property assets.  He counsels clients on business formation, general corporate matters, trademark, copyright, trade secret, patent, licensing, internet and domain name issues, among other things.  For more information contact: Allen M. Lee, a Professional Law Corporation, Tel: (650) 254-0758, Fax: (650) 967-1851, Email: allen@allenmlee.com, Internet: www.allenmlee.com.



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