New 9/18/07 Updated 10/1/18
What is copyright
Copyright laws protect “original works of authorship fixed in any tangible medium or expression,” and reserve to the copyright holder the exclusive rights to reproduce, distribute copies and publicly display or perform the work, or prepare derivative works. For on-line works this may include text, artwork logos, audiovisual materials (including sounds), sound recordings, software and code, etc. Copyright protection reaches only the way an idea is expressed, and not the idea itself (an idea is never copyrightable, but the unique expression of an idea in a fixed form is). It generally does not protect the following: a procedure; process; system; method; operation; concept (but, see patent, below); principle or discovery; facts (regardless of the form in which described, explained, illustrated or otherwise embodied in such work – but, databases are protected as compilations, so their use should be scrutinized); short phrases; titles (but, a trademark can, e.g., “Star Wars”); names; slogans; common or familiar symbols or designs; mere variations of typographic lettering; or works that derive from information within the public domain (e.g., works whose copyright has expired).
Merely owning a book, manuscript, painting, sculpture or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
What Is Not Protected by Copyright?
Several categories of material are generally not eligible for federal copyright protection:
- Works not been fixed in a tangible form of expression (e.g., choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded);
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents;
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration;
- Works consisting entirely of information that is common property and containing no original authorship (e.g.: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
Ownership and assignment
The copyright owner has control of the material. Although they
can transfer their copyright in its entirety, they or their heirs could
terminate the transfer after 35 years and relicense or
retransfer the copyright etc.
The U.S. recognizes 2 ways copyrightable material can be produced:
- a person puts a unique expression of an idea into a fixed form themselves, in which case they own the copyright; and
- “work-for-hire”, i.e., the person or organization doing the hiring is considered the content creator and owns the copyright, and can exploit the copyright and all derivative works as it sees fit.
There are 2 types of work-for-hire:
- Employees; and
- Independent Contractors.
You can call someone whatever you want in a contract, but whether they are an Employee or an Independent Contractor is based generally on a series of questions developed by the IRS, i.e., If the person who pays you controls both what you do and how you do it, you are an Employee; if the payer only controls the result of your work but not the method, you are an Independent Contractor.
Under work-for-hire, the employer owns the copyright to its employees’ output. Independent Contractors must meet 3 conditions for their work to be considered work-for-hire:
- the work must be “specially commissioned” i.e., the work cannot predate the contract);
- the work must fall into 1 of 9 categories delineated in copyright law; and
- both parties must agree in writing that the work is a workforhire.
The 9 categories are:
- a contribution to a collective work
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work
- a compilation
- an instructional text
- a test
- answer material for a test
- an atlas
The authors of a joint work are co-owners of the copyright in the work, absent 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 the contribution.
Termination of Transfers
Under previous law, the copyright reverted to the author (if living, or if not living, to other specified beneficiaries), if a renewal claim was registered in the 28th year of the original term. The present law drops the renewal feature (except for works already in the 1st term of statutory protection when the present law took effect), and permits termination of a grant of rights after 35 years under certain conditions by serving written notice on the transferee within specified time limits. For works already under statutory copyright protection before 1978, the present law provides a similar right of termination covering the newly added years that extended the former maximum term of the copyright from 56 to 95 years. For further information, request Circulars 15a and 15t.
Registration is not mandatory, but is not complicated or expensive. Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin. Registration also provides additional benefits. If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions (although the judge can still determine how much). Otherwise, only an award of actual damages and profits is available to the copyright owner.
If a “work” is modified the modification should generally be registered as well (particularly software).
To register a work, send the following 3 elements in the same envelope or package to:
- Library of Congress
101 Independence Avenue, SE
Washington, DC 20559-6000
- A properly completed application form.
- A nonrefundable filing fee* for each application.
- A nonreturnable deposit of the work being registered. The deposit requirements vary in particular situations. The general requirements follow. Also note the information under “Special Deposit Requirements.”
- If the work was first published in the United States on or after January 1, 1978, 2 complete copies or phonorecords of the best edition.
- If the work was first published in the United States before January 1, 1978, 2 complete copies or phonorecords of the work as first published.
- If the work was first published outside the United States, 1 complete copy or phonorecord of the work as first published.
If sending multiple works, all applications, deposits, and fees should be sent in the same package. If possible, applications should be attached to the appropriate deposit. Whenever possible, number each package (e.g., 1 of 3, 2 of 4) to facilitate processing.
Who May File an Application Form?
The following persons are legally entitled to submit an application form:
- The author. This is either the person who actually created the work or, if the work was made for hire, the employer or other person for whom the work was prepared.
- The copyright claimant. The copyright claimant is defined in Copyright Office regulations as either the author of the work or a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author. This category includes a person or organization who has obtained by contract the right to claim legal title to the copyright in an application for copyright registration.
- The owner of exclusive right(s). Under the law, any of the exclusive rights that make up a copyright and any subdivision of them can be transferred and owned separately, even though the transfer may be limited in time or place of effect. The term“copyright owner” with respect to any one of the exclusive rights contained in a copyright refers to the owner of that particular right. Any owner of an exclusive right may apply for registration of a claim in the work.
- The duly authorized agent of such author, other copyright claimant, or owner of exclusive right(s). Any person authorized to act on behalf of the author, other copyright claimant, or owner of exclusive rights may apply for registration.
There is no requirement that applications be prepared or filed by an attorney.
Copyright law does not always restrict our ability to use third-party content. Limited use of copyrightable materials without the copyright holder’s permission may be permitted under the “Fair Use” doctrine, including criticisms, comment, news reporting, teaching, scholarship or research, satire, and parody. Similarly, limited parts or a whole work may be reproduced with proper attribution for noncommercial purposes that do not hurt the value of or market for the original. The more informational and fact-based a work is, the less likely it will receive copyright protection, and the broader “fair use” can be made of such materials.
Copyright notice (e.g., “©2000 ABC, Inc., all rights reserved”) is not required, but the notice should still be used as a reminder that the material is copyrighted, and because it precludes an “innocent infringement” defense in most cases. All top-level or primary web pages and graphics or designs for which protection is warranted should contain a copyright notice, and use throughout a site is generally recommended to ensure notice to visitors who “deep link” into a site.
Company web site developers and operators should obtain proper approval from copyright holders unless the desired use falls within a “fair use” exception. Unauthorized use of a third-party’s materials on a web site might subject the Company to a variety of infringement claims, including direct infringement if it selects, edits and approves of posting of third-party materials, and also significant risks for third-party materials posted by other persons (e.g., chat rooms, bulletin board services, file transfer sites, etc.), even without knowledge that infringing conduct is occurring. Section 230 of the U.S. Telecommunications Act may provide some protection, if an “interactive computer service” does not: (1) control and approve the posting; or (2) post the content itself. The 1998 U.S. Digital Millennium Copyright Act extended similar protection if so-called “take-down mechanisms” are implemented allowing aggrieved copyright claimants to complain and requiring prompt investigation and, if warranted, removal. Specific guidelines should be used for any open forums informing users of acceptable conduct, and can include requiring a user to click “I accept” the terms (click-wraps), which are considered to be the equivalent of shrink-wrap software licenses which have been held binding on users.