Copyright Registration: How? Why?

So copyright protection arises upon fixation of a creative work in a tangible medium.  So why should you bother with registration with the Copyright Office?  And how do you do it?

First, why get a work registered with the Copyright Office?  There are actually several very good reasons.  It is essentially impossible to rely upon the courts to protect your copyright in the absence of registration with the Copyright Office.  U.S. copyright owners must register their copyrights before they can bring a lawsuit for copyright infringement.  Note, however, that this requirement can be met by registering the copyright after the infringement.  But this sort of late registration is discouraged because certain remedies under the law are reserved for those who have their works registered early.  If a work is not registered before the alleged infringement, or within a short period of time following publication of the work, the owner of the copyright cannot receive what are known as "statutory damages".  Further, late registrants are not eligible to receive attorney fees.  I'll discuss these remedies later.  For now, suffice it to say that statutory damages and attorney fees can be very important in copyright litigation.

So you need to register your work to file a lawsuit and get statutory damages and attorney fees.  What do you have to do?  The owner of a copyright may register his work with the Copyright Office at any time.  Such registration includes completing an application and filing it with the Copyright Office along with copies of the work.  There is no rigorous examination of copyright applications, but those applications that are not in compliance with the requirements are rejected.  If the work is published, Copyright regulations require submission of copies of the work within three months of publication to the Library of Congress as well.

Next time, we'll talk about the duration of copyright protection. If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Copyright Notice

Lots of folks think that the way to ensure that their creative work is protected by copyright is to include some notice that it is copyright protected, or including the © in the work.  But requirement of such a notice seems inconsistent with the idea that creative works are copyright-protected when they are fixed.  That said, in the United States, copyright notice has, at various times, been very important in protecting one's rights.  Different versions of the copyright law had different requirements.  It is important to know these differences when looking at older works, as the law at the time of publication applies with regard to notice requirements. 

Copyright Act of 1909:  Under this older scheme, applicable through January 1, 1978, common law copyright protection applied before a work was published.  Upon publication, there was no common law protection, and protection depended upon compliance with the statutory requirements.  The statute required that all authorized copies of a work carried proper notice of copyright.  This requirement was fairly strictly construed.  If even a few copies of a work had improper notice or no notice, then all copyright protection in the work could be lost. 

Copyright Act of 1976:  This scheme applies to works published between January 1, 1978 and March 1, 1989.  In this scheme, federal statutory protection began upon fixation of the work in a tangible form.  Notice was required for all visually perceptible copies of a work that were publicly distributed.  As before, failure to do so could result in loss of copyright protection.  However, if certain conditions were satisfied, the copyright protection could be saved in spite of the improper notice.  Copyright protection could be saved if only a small number of copies were distributed without notice, if the work was registered with the Copyright Office within five years of publication and efforts were made to add notice to copies distributed after the omission of notice was discovered, and if the copies of the work were distributed in direct violation of an express agreement in which the copyright owner insisted that the copies include notice.  If a copies lacked notice, and even if copyright protection was saved, innocent infringers who relied upon the lack of notice as an indication that the work was in the public domain were excused from paying damages for their infringement. 

Berne Convention:  This is the current scheme, applicable since March 1, 1989.  The Berne Convention is an international copyright protection scheme.  Most foreign countries have long shunned the need for copyright notice and other formalities.  In order to join the Berne Convention, the U.S. had to eliminate its notice requirement.  Accordingly, notice requirement is now strictly voluntary.  However, the U.S. code attempts to encourage the inclusion of the voluntary notice by providing that if proper notice is included on the published copy of a work to which an accused infringer had access, the defendant could not use an innocent infringer defense to mitigate actual or statutory damages.  Thus, including notice can be very important in any copyright litigation.

Next time, we'll talk about the requirements for copyright registration, and why it is worthwhile. If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Divisibility of Ownership of Copyright

As you know, copyright law in the U.S. protects a bundle of exclusive economic rights.  These include the right to reproduce the work, the right to prepare derivative works, the right to distribute copies of the work to the public, the right to perform the work publicly, and the right to display the work.  Each of these economic rights are generally owned by the author of the work.  But the U.S. Copyright Act provides that the different rights can be assigned to others.  In fact, the author can even subdivide the rights to others.  As an example, the author of a book owns the right to make derivative works.  He could assign a part of this right, such as the right to adapt the book into a movie, to one person, and he could assign another part of that right, such as the right to publish a foreign language translation of of the book to another person.

So how does a copyright owner transfer his rights?  All transfers of exclusive copyright ownership must be in writing.  Note, however, if the transfer is merely permission to do something protected by copyright law, but not an exclusive right, it is just a license, and may be oral.

So does a work of art have to have a notice of copyright in order to be protected by United States copyright law? We'll talk about that next time.  If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Copyright in Collective Works

So, say you and your four best friends are all poets.  You each write a few poems.  Among your poems is a limerick in which you extoll the virtues of drinking beer.  It's a really nice limerick.  All of the poems are really nice.  Your friend, Cole Lecter, gathers all the poems together and publishes them in a collection.  So, who owns the copywrite?

Well, fortunately, the drafters of the U.S. Copyright Act thought about this situation.  Section 201(c) of the Copyright Act provides that

Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

With this provision, it is clear that the presumption is that each of the contributors retain the copyright in his own works of authorship.  Thus, your limerick belongs to you.  What Cole has in this case (unless the parties agree otherwise) is the privilege to reproduce and distribute the individual works as part of his collection.  Cole does own the copyright to any work of his own authorship that is included in the collection.  For example, Cole's expression or contribution might include the selection and arrangement of the separate works, or the preface that he wrote himself. 

Is it possible for copyright rights in a single work to be owned by different folks?  Next time, we'll talk about that.  In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

The Boss Might Own the Copyright: Works For Hire

In my last post, i talked about how the usual situation is that the initial owner of the copyright of a work is the author of the work.  A very important exception to this "usual situation" is when a work is "made for hire" according to the Copyright Act. According to the Copyright Act, section 101:

A “work made for hire” is — 

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

It is important to determine if an artist who is making a work for another person is working more like an employee of "the boss", or if he is acting as an independent contractor on a specially ordered or commissioned work. If he is an employee, the initial copyright owner is the employer. If e is not an employee, then the initial owner of the copyright is the artist unless the parties agreed otherwise in writing. Generally, determining whether an artist is an employee ( and the work a work for hire) or an independent contractor is based upon a consideration of several criteria, including the following:

(1) the level of skill required- greater required skill weighs against a work for hire.
(2) the source of tools and instruments used- if provided by the artist, less likely to be found a work for hire.
(3) the location of the work- if done on artist's premises, less likely to be a work for hire.
(4) the duration of the relationship between the boss and the artist- shorter duration is less likely to be a work for hire.
(5) the degree to which the boss has the right to assign the artist to other tasks- if the boss can do this, more likely to be a work for hire.
(6) the artist's discretion in setting his hours- if the artist can do this, more likely not a work for hire.
(7) the method of payment- if the same as other employees, more likely a work for hire.
(8) the artist's role in hiring and paying any needed assistants- if he hires and pays assistants, less likely to be a work for hire.
(9) whether the work is part of the regular business of the boss- if it is, more likely to be a work for hire.
(10) whether the boss is, in fact, in business- if not, more likely not a work for hire.
(11) whether the boss provides employee benefits for the artist- if he does, more likely a work for hire.
(12) whether the boss withholds taxes from the artist's pay- if he does, more likely a work for hire.

The creator of a work for hire has very few rights under copyright law. Thus, it is very important to understand who owns a commissioned work and generally best to get it in writing from the start.

So who owns the copyright in a collection of stories or photographs with many different artists? I'll talk about that next time. In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

From Politico: movie, music pact with Internet Service Providers

http://www.politico.com/news/stories/0711/58499.html

Who Owns a Copyright?

I hope you all had a nice 4th of July holiday.  Over the next few days, I'm going to write about ownership of copyright.  There are several different situations that need to be considered. 

Generally, the initial owner of the copyright of a work is the author of the work.  The author can exploit the work himself, he can transfer part of his rights to another, or he can transfer all of his rights to another.  But who is the author?  Generally, the author is the person who conceives of the copyrightable expression and fixes it into a tangible form, or has someone else to fix into a tangible form.  One interesting situation is when a work is made for hire.  In that case, the one who hired the worker who actually made the work is considered the author.  I'll talk about works for hire in my next blog. 

Another interesting ownership question involves ownership in joint works.  A work prepared by two or more authors who intend that their work be merged into inseparable or interdependent parts of a single work is considered a joint work.  The emphasis is on the intent of the authors at the time each of them made his contribution to the work.  The different authors don't need to work at the same time, or even know each other, but must intend to contribute to a single unitary work at the time he makes his contribution. 

Joint authors generally each own equal undivided interests in the joint work.  For example, two joint authors would each own one-half interest in the entire work.  Each owner is entitled to exploit the copyright without seeking any permission from the other, but will have to share the profits.  Note that this situation differs from one where two authors each own different copyrights that are exploited together.  For example, if A owns the rights to the lyrics of a song, and B owns the rights to the music, and either exploits the combination without the other's permission, he will be liable for infringement of the other's copyright.

Note that the ownership by joint authors of equal shares can be varied by agreement of the parties.  If you have any questions about the copyright ownership, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.