Copyright Basics
What is a Copyright?
A copyright is the legal authority from the United States Constitution to alter, perform, reproduce, and sell a specific, original idea when used in a particular context for a set amount of time.
Copyright is one of the four main types of intellectual property (or “IP”), along with patents, trademarks, and trade secrets. Like other types of IP, copyrights are intangible assets that enjoy legal property rights and protections. Copyrights are often commercially valuable because they can give legal protection from having content be duplicated and sold by someone else.
Copyrights are governed by federal law under the Copyright Act of 1976. Copyright protects original works of authorship that are fixed in a tangible medium of expression (copyright.gov). So what does that exactly mean? Let’s break down each individual element:
Works of authorship
The Copyright Act of 1976 lists what qualifies, and what does not, as works of authorship. This list includes:
Literary works
Musical works
Dramatic works
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works
While this is not an exhaustive list, these are the most common forms of works that will fall under copyright protection. It is also important to note what does not fall under copyright protection.
According to copyright.gov: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”
So ideas themselves are not protectable by copyright law; they must be captured in some tangible form to be protectable. Facts are also not protectable copyright. So if you write an autobiography on a historical figure, the facts about the figure you use would not be protected, although your individual expression or words used to describe those facts would be.
Originality
The standard for a work to be original is fairly easy to meet. Originality means the work was independently created, not copied from someone else, and possesses a minimal degree of creativity. To possess a minimal degree of creativity, the author must only have some creative spark behind the work. Originality is not synonymous with novelty, although the work cannot be directly copied from someone else.
It is again important to note that only the expression of ideas is protectable under copyright– not the idea itself. Furthermore, an author’s creative expression is protectable copyright, while underlying facts are not.
For instance, if you write a novel, as an author you would own certain copyrights within the novel, but some elements would not be protectable. Elements that are considered standard to a particular topic, or elements that necessarily follow from a common theme or setting (known as “Scenes a Faire”) are not protected by copyright. So broad themes such as star-crossed lovers, a villain tying someone to train tracks, or an evil stepmother are not protected by copyright – although an author’s individual expression or arrangement of those themes would be.
Fixation
Fixation is rather straightforward. A work is fixed when it is embodied in a material object from which it can be perceived, reproduced, or otherwise communicated for more than a transitory period. For example, a novel would be fixed when it is written on paper. A motion picture would be fixed once it is filmed.
The term of copyright varies based on numerous factors, but in general copyright expires 70 years after the author’s death. This means your copyrighted work would be protected for your entire lifetime, plus 70 years.
How to Obtain Copyright Protection
Once you have created an original work and have fixed that work in a tangible medium, you do not need to take any further steps to have copyright protection. Copyright protection exists from the moment an original work is fixed.
Original work of authorship + fixation = automatically entitled copyright protection.
“Original work of authorship + fixation
= automatically entitled copyright protection.”
However, as an author of a creative work, you may still want to federally register your work with the U.S. Copyright Office to obtain some key benefits.
Registration
Benefits
Although federal registration is not required for copyright protection, there are many benefits which creators should know when deciding whether or not to register.
First and foremost, a work must be registered in order to file a copyright infringement lawsuit. This means that if you own a copyright over your original work and someone infringes that copyright, you will not be able to file a lawsuit unless your work is federally registered. Simply owning the copyright is not enough.
You may add the copyright symbol, ©, to any original work without federally registering the copyright. However, the © symbol alone does not give federal copyright protections.
Furthermore, a copyright owner can only recover statutory damages and attorney fees if they register the work prior to infringement or within three months of the work’s first publication.
Registering your creative work also creates a public record. This makes it easier to prove when someone has infringed on your work, and easier for people who wish to use your work in some creative capacity to find you and ask for permission.
Thus, because of the legal safeguards registration provides, registering copyright is a good idea for any creative content creator.
How to register a copyright
To obtain copyright registration, you must file an application with the United States Copyright Office, along with a filing fee and a deposit of your work.
The copyright registration process is typically faster than the registration process for trademarks or patents because copyrights are not formally examined in the same manner. The average processing time for a copyright application is currently around three months (registration processing times copyright.gov). You can even expedite this process by requesting special handling and paying an additional fee, in which the processing can be as little as five days.
How do you dispute a copyright infringement?
A copyright owner has various rights under the Copyright Act of 1976. These rights include, the right to exclude others from reproducing, modifying, distributing, displaying, or performing the protected work during the copyright term. Committing any of these acts may be considered copyright infringement.
How an Intellectual Property Attorney can help
Copyright registration can be a simple process. However, an experienced intellectual property attorney can aid in the process and make sure everything is done smoothly and correctly.
Depending on the particular circumstances and the complexity of your case, hiring an intellectual property attorney to help understand your copyright rights and protections may be a good idea.
An intellectual property lawyer can help you understand the best type of copyright to pursue, guide the application process, and defend the copyright if there is an infringement dispute.
If you want to learn more about your copyright options please contact the BCR Firm to learn how we can help.
Guest post by Brandi Seppala, Summer Associate