property results from exercise of
the faculties of the mind. In this
regard, intellectual property may
be books, magazine articles, music
and other works of authorship. These
forms of intellectual property are
protected by copyright law. Copyright
law protects the owner of the copyrighted
work with respect to unauthorized
copying of the copyrighted work by
Copyright law protects creators of
"original works" of authorship.
Under the U.S. copyright statute,
copyrightable works include:
- Literary works
- Musical works, including
any accompanying words
- Dramatic works, including
any accompanying music
- Pantomimes and choreographic
- Pictorial, graphic, and
- Motion pictures and other
- Sound recordings
- Architectural works.
Copyright protection applies both
to published and unpublished works
The copyright owner has the exclusive
right to reproduce the work; prepare
other works based on the work (i.e.,
prepare "derivative works");
distribute copies of the work by
sale or lease; perform the work
publicly; display the work publicly;
and authorize others to do the
same. To be eligible for copyright
protection, the original work of
authorship must be "fixed
in a tangible medium of expression."
For example, a book, magazine article,
or newsletter is copyrightable subject
matter because they are works of
authorship fixed in a tangible medium
of expression. Of course, the work
must be original (independently
created by the author) and not a
copy of or substantially similar
to a preexisting work by another.
A database for searching federally
registered copyrights is hosted
on the U.S.
Library of Congress Website.
A commercial database service for
searching copyrights is on the Dialog
Database Website, which is
hosted by the Thompson Corporation.
Other databases are available,
Sometimes, authors fail to appreciate
that copyright law does not protect
the idea, facts or general techniques
expressed in the work. For example,
a specific computer software program
may be protected under the copyright
statute. However, the general idea
of using computer software programs
can not be protected by copyright.
Such a computer program may instead
be protected by the patent law.
Copyright law protects against out-right
copying of the work or producing a
work that is substantially similar
to the copyrighted work. With regard
to this latter point, copying a copyrighted
work and then changing a word or two
in the copyrighted work will not circumvent
the copyright statute because such
a copy is substantially similar to
the original copyrighted work.
the term of a copyright?
A copyright lasts for the life of
the author plus 70 years for works
published after 1977. A work is "published"
when it is shown to others on an unrestricted
or non-confidential basis. If a work
is a "work made for hire,"
or published anonymously or under
a pseudonym, the life of the copyright
is between 95 and 120 years, depending
on when the work was published. Works
published before 1923 in the United
States are in the public domain. Works
published after 1922 but before 1978
are protected for 95 years. If the
work was created, but not published
before 1978, the copyright lasts for
the life of the author plus 70 years.
If the author died more than 70 years
ago and the work was never published,
his copyright terminated on December
31, 2002. If the author died over
70 years ago, and a previously unpublished
work was published before December
31, 2002, the copyright will last
until December 31, 2047. As can be
seen, determining the life of a copyright
can be complicated. An intellectual
property attorney should be consulted
with regard to any particular situation.
Sometimes, an individual or business
owner will use the services of an
independent contractor to prepare
a work that is copyrightable, such
as a computer program. To protect
his rights in the work, the individual
or business owner may ask the independent
contractor to sign a "work made
agreement. Generally speaking, a "work
made for hire" agreement with
an independent contractor must
relate to one or more of the following
nine statutory categories of commissioned
works listed in the U.S. Copyright
- A translation
- A contribution to a motion
picture or other audiovisual work
- A contribution to a collective
work (such as a magazine)
- As an atlas
- As a compilation
- As an instructional text
- As a test
- As answer material for
- As a supplementary work
(i.e., "a secondary adjunct
to a work by another author"
such as a foreword, afterword, chart,
illustration, editorial note, bibliography,
appendix and index).
Incidentally, computer software programs
do not fall within any of these categories.
Thus, a computer programmer may arguably
own the copyright in the software
and the entity that commissioned the
work will have no right to copy or
distribute it without the independent
contractor's permission. This is true
even if one fully paid the programmer
and the computer programmer signed
a "work made for hire" agreement.
A solution to this problem is to include
language in the work made for hire
agreement that the computer programmer
assigns his entire copyright to the
individual or business that commissioned
the work. If the programmer refuses
to assign his entire copyright to
the individual or business that commissioned
the work, then the individual or business
owner may consider asking for a license.
Types of licenses are exclusive licenses,
"sole" exclusive licenses
or nonexclusive licenses. The computer
software example above illustrates
that work made for hire agreements
should be drafted carefully.
How is a
Many authors labor under the
misconception that a work must contain
a copyright notice and/or be registered
with the U.S. Copyright Office in
order to receive copyright protection.
This is not the case. A copyright
to an original work of authorship
is automatically perfected the instant
the work is fixed in a tangible medium
of expression, such as written on
paper, saved on computer disk, completed
as a sculpture, completed as music
recorded on tape, etc. A copyright
notice on the work is no longer required
in order to obtain copyright protection
for works first published on or after
March 1, 1989. However, a proper copyright
notice on a work nonetheless obtains
certain legal advantages, as explained
below. A proper copyright notice allowable
by statute is the word "Copyright"
followed by the year of first publication
of the work and then the name of the
owner of the work. For example, a
hypothetical copyright notice might
read as follows: "Copyright 2007
John Doe." Such a copyright notice
should be visibly placed on the work
where the notice can be ascertained
without unduly searching for the notice.
Other acceptable forms of copyright
notice are provided in the copyright
statute (Unted Stated Code, Title 17).
Even today, there is still confusion
among authors as to whether or not
a proper copyright notice requires
the words "All Rights Reserved,"
such as "Copyright 2007 John
Doe. All Rights Reserved." The
words "All Rights Reserved"
were once required by a treaty signed
at the Buenos Aires Convention in
April 1910. These words are no longer
required because the Berne Convention
for the Protection of Literary and
Artistic Works and the Universal
Copyright Convention of 1971 effectively
replaced the requirements of the
Buenos Aires Convention. The United
States ratified the Universal Copyright
Convention on July 10, 1974. The
United States became a party to
the Bern Convention on March 1,
1989. However, due to the intricacies
of these three treaties, the only
countries where the words
"All Rights Reserved" are
still required are Honduras, Bolivia
and Nicaragua for works published
in those countries. Otherwise, the words "All Rights Reserved" have no legal effect.
A proper copyright notice informs
a prospective infringer
(someone who plans to copy the copyrighted
work) that one is claiming copyright
ownership in the work. If the prospective
infringer copies the work in spite
of seeing the copyright notice, then
he willfully infringes the work because
he is aware that someone is claiming ownership
of the copyright. Thus, under U.S.
law, if the copier is found to have
willfully infringed a valid copyright,
then he may be liable for three times
the money damages he otherwise would
have had to pay the copyright owner.
This is in essence a "penalty"
the law imposes for willful infringement.
Also, the infringer will have to dispose
of all infringing copies of the work.
As indicated above, registration
of the copyright in the U.S. Copyright
Office is not required to perfect
the author's legitimate copyright
in the work. However, registration
is necessary to sue an alleged infringer
to recover damages for copyright
infringement and to get an injunction
to stop the alleged infringer from
using the copyrighted work. One may
sue for actual damages (the monetary
loss caused by the infringement),
the infringer's additional profits
he made on the use of the work, and
statutory damages (up to a limit
of $150,000) and attorneys' fees
in appropriate cases. In order to
receive the full panoply of these
damages, the work must be registered
either within three months after
the work is first published or before
the infringement first occurs. If
the copyright owner registers the
work later (such as after the infringement
occurs), the copyright owner will
only receive actual damages and the infringer's
Current cost to register a work
for copyright protection in the U.S.
Copyright Office is readily available from
Copyright Office Website. After
the copyrighted work is registered,
the Copyright Office will send the
registrant a date-stamped Certificate
of Registration as proof of registration.
Registration is prima facie evidence
of the copyright's validity if the
registration occurs within five years
after first publication.
An intellectual property attorney
can assist an author in registering
his copyright. Also, there are Internet
online services that will assist
in registering the copyright for
a fee. Alternatively, one can attempt
to register the copyright himself
by getting the necessary
forms from the U.S. Copyright
Office or from various Internet on-line