Copyrights

About Copyrights

Copyrights are about expression — the process of making thoughts or feelings known; it exists in the telling. Whereas patents protect ideas, copyrights protect the manner in which those ideas are expressed, but not the ideas in and of themselves.

In general terms, copyrights protect original works of authorship, and automatically exist whenever a work is fixed in a tangible form of expression. A work is original when independently created with at least a minimal creative spark. The fixation requirement is generally met when a work is preserved in any medium that enables it to be perceived over time.

Examples of copyrightable expression featuring an assortment of authors include:

• for an artist, how a scene is painted as captured on a canvas, where the expression is in the result of the author’s selection and mixing of colors, selection of brushes or other tools, and the making of brushstrokes;
• for a singer, how a song is sung as captured in a recording, where the expression is in the author’s voicing — intonation, inflection, articulation, projection, rhythm and so forth;
• for an audio production engineer, how the recorded song is recorded as captured in the recording, where the expression is in the author’s equalization, balance and mixing of audio inputs, control of dynamic ranges and application of sound effects;
• for a writer, how an idea is explained as captured in a writing, where the expression is in the author’s choice and arrangement of words;
• for a photographer, how a scene is photographed as captured on film or in persistent digital memory, where the expression is in the author’s composition of the subject, as well as selection of shutter speed, distance, focal length and so forth; and
• for a photo editor, how the photographed scene is edited as captured on magnetic disk, where the expression is in the author’s choices to adjust the image’s tone, shadows, contrast, color balance, white balance, vibrance, saturation and so forth.

A copyright is actually a bundle of rights, of which copyright is the namesake of the first — the right to make copies. Each of these rights is an exclusive right, which means that only the owner of the copyrights can exercise a right or give others permission to exercise a right.

When permission to exercise one or more rights is given to another the permission is called a license, which typically involves a written agreement that should be prepared by a copyright attorney.

In lay terms, the exclusive rights to a copyrighted work include the rights:

• to make copies of the work;
• to recast, transform or adapt the work into a new original work, such as when a script is made into a movie or a photograph is used as a reference for a painting;
• to distribute copies of the work to the public by sale, lease or lending;
• for such works as may be performed or displayed, to perform or display the work publicly; and
• for sound recordings, to perform the work publicly by digital audio transmission.

Under proper circumstances, violation of any of these rights may enable the owner to sue the infringer to obtain a court order to stop the infringing activity and to obtain monetary damages. The amount of monetary damages is determined either as the owner’s actual damages plus any additional profits of the infringer, or as what is called statutory damages.

Because actual monetary damages are often either difficult to prove or nonexistent, statutory damages allow the court to fix damages based on the conduct of the defendant. The amount of statutory damages awarded can be as much as $150,000 for a willful infringement. The owner may also recover attorney fees.

Although copyrights automatically exist from the time any original work of authorship is fixed in a tangible form of expression, the ability to enforce a U.S. copyright generally requires registration of the copyrights with the U.S. Copyright Office. With very few exceptions, no lawsuit can be filed unless the work is first registered.

If an infringement takes place prior to registration of an unpublished work, or prior to registration of a work that has been published for more than three months, the owner of the work cannot recover statutory damages or attorney fees. In a case where actual damages are limited or in doubt, this can make enforcement of the copyright unfeasible. It is therefore critical to promptly register the copyrights for any work likely to be copied or adapted, improperly distributed or displayed publicly by others.

The sale or purchase of an article that is copyrighted or includes copyrighted material does not automatically transfer the copyrights. Similarly, the transfer of all or any of the exclusive rights under a copyright does not automatically transfer any property right in the physical article. Any or all of the exclusive rights under a copyright may be transferred by any means, but to be valid the transfer must be in writing and signed by the owner of the rights being transferred.

Any or all of the exclusive rights under a copyright may also be licensed for the use of another. Although a copyright license does not necessarily require a written instrument by law, a written license agreement is critical to prevent overstepping of the license. The written license agreement can be relatively complicated and is generally prepared by a copyright attorney.

Other than works made for hire, any transfer or license of a copyright or any right under a copyright is subject to termination by the grantor of the transfer or license, typically at thirty-five (35) years after the transfer or license is granted. It is clearly advantageous to obtain a work from another as a work made for hire rather than through assignment or other transfer of the rights.

For an employee, any work prepared by the employee within the scope of his or her employment is a work made for hire. Beyond application to employees, the work made for hire provision is one of the most commonly misunderstood matters of copyright law.

For anyone other than an employee working in the scope of their employment, a work made for hire requires (1) a written agreement signed by all parties stating that the work shall be considered a work made for hire, and (2) that the work is specially ordered or commissioned for use as one of a very narrow category of works.

Most works do not meet the requirements to be a work made for hire. The advice of copyright counsel is strongly advised to ensure that rights will transfer as intended, whether as a work made for hire or through one or more fallback provisions.

International Rights

There is no international copyright. Unlike the cases of patents and trademarks, there also is no common international copyright application. While the United States is a party to numerous international treaties pertaining to copyrights, the manner in which a U.S. national’s copyright application will be received in any given foreign country is ultimately a matter of that country’s national law.

Most foreign works are eligible for registration with the U.S. Copyright Office. Eligibility typically turns on the details of the first registration, if any, of the foreign work. All unpublished foreign works are eligible for U.S. registration without regard to the nationality or domicile of the author.