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Copyright Law

The best source for copyright and patent information is the government website: http://www.copyright.gov/

The site gives good instructions on how to file a copyright and makes the appropriate forms available.

Following is a quick look at Copyright Law.

I. Constitutional Basis

Congress shall have the power…

"To promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries" Art. I, § 8, cl. 8

II. Period of Protection

Under the current copyright law as amended to conform to the Berne Convention, an original work is protected for the life of the author plus 70 years.

III. Who is an "Author"

  • The one indispensable element of authorship is originality: the product of one' own independent efforts. In the constitutional sense, an "author" could be an artist, composer, photographer, architect, sculptor, cartographer or compiler, as well as writer of prose, poetry, drama, etc.
  • In the case of a "work made for hire," the courts have determined that the "author" has impliedly assigned his rights to the employer unless the parties have specifically agreed otherwise.

IV. What is Protected

The Supreme Court ruled that "writings…include any physical rendering of the fruits of creative intellectual or aesthetic labor." Thus, not only visible works, but any work perceptible by any of the five senses is deemed to be a tangible work protectible by copyright. A live performance of a play is not protected by copyright; however, the play script and any videotape or recording of the performance would be protectible.

  • Literary Works: works expressed in words, numbers or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, tapes film, discs or cards, in which they are embodied are copyrightable.
  • Catalogs and Directories: even if a compilation consists merely of a selection or arrangement of "facts' that would by copyrightable, or of individual items that are themselves copyrighted, the originality involved in the selection and/ or arrangement of such facts is sufficient to constitute the resulting compilation a protectible literary work (but telephone books are deemed lacking in "originality" and are not protected).
  • Computer Data Bases and Programs: these are copyrightable to the extent they incorporate authorship in the programmer's expression of original ideas, as distinguished from the ideas themselves.
  • Musical Works: the music, including any accompanying words, is entitled to copyright so long as it is fixed in any tangible medium of expression: either written or recorded. Even "arrangements" of published musical work are subject to copyright protection if they are sufficiently original.
  • Dramatic Works: must relate a "story" that is visually or audibly represented to an audience as actually occurring, rather than being merely narrated or described in order to be copyrightable.
  • Pantomimes and Choreographic Works: these are deemed to subsets of "dramatic" works that tell an audience a story without words but in such a tangible way that they could be copied.
  • Pictorial, Graphic Sculptural Works: two-dimensional and three-dimensional works of fine, graphic, and applied art; photographs, prints and art reproductions; maps, globes, charts, diagrams and models, which need not carry with them any aesthetic value or intrinsic quality to be protectible so long as they result from an individual's own expense, skill or labor. However, three dimensional works are protected by copyright only if and to the extent that the design incorporates features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. Art reproductions are protectible only if they incorporate features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. Art reproductions are protectible only if they incorporate sufficient originality (such as mezzotint engraving of a classical art work).
  • Drawings and Plastic Works of a Scientific or Technical Character: includes diagrams or models such as mechanical drawings, an architect's blueprint, an anatomical model or an engineering diagram so long as the work is original and not a copy of an existing work.
  • Photographs: any product of the photographic process, whether in print or negative form, including filmstrips, slide films and individual slides, as distinguished from audiovisual works which consist of a series of related images which are intended to be shown sequentially by the use of machines.
  • Prints and Pictorial Illustrations: includes items such as greeting cards, picture post cards, and even labels which are printed then affixed to a product.
  • Prints and Labels Used for Articles of Merchandise: in this case, a print is intended to be an artistic work used in connection with the sale or advertisement of merchandise while a label is an artistic and/or literary work impressed or stamped directly on the article of merchandise or on material to be attached to the merchandise to indicate the nature of the goods provided there is sufficient originality in the composition of the work.
  • Dress and Fabric Designs; includes the "pattern" for a garment but not necessarily the garment itself (which is an article having an intrinsic, utilitarian function) as well as the design on the fabric from which the garment is constructed, so long as the design has some degree of originality and not merely the result of a standard fabric construction (such as a weave or knit).
  • Sound Recordings: works that result from the fixation of services of musical, spoken or other sounds, but not including the sounds accompanying an audiovisual work, regardless of the nature of the material objects, such as discs, tapes, or other phonorecords, in which they are embodied.Motion Pictures and other Audiovisual Works: consist of a series of related images which are intrinsically intended to be shown by the used of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
  • Factual Works (Including News, Histories, Biographies, Scientific Treatises, etc.): the facts themselves are not copyrightable, but the writing which collects, selects, and reports the facts is protectible to the extent it includes opinion or fictional elements or is expressed with some degree of originality. Thus, a newspaper article reporting specific facts could not be copied word for word, but could be paraphrased without violating the author's copyright.
  • Characters (apart from the work in which such character appears): if the character as originally conceived and presented were sufficiently developed to command copyright protection, the copyright could be violated only if the alleged infringer depicted a character so substantially similar that there could be violated only if the alleged infringer depicted a character so substantially similar that there could be no question of the identity (i.e. Charlie Brown, Mickey Mouse or Superman).
  • Jokes, "Gag," and other "Stage business": philosophically, these works could claim copyright protection if they were sufficiently original and were comprised of the particular expression of an idea but not just the idea itself. The only example that has stood the test of the courts is the copyrightability of the cosmetic designs used to make up to the actors in Cats.
  • Color Arrangements: adding color to a previously black and which picture may constitute a copyrightable contribution; however, "color schemes" in decorations are not copyrightable by themselves.

V. What Constitutes Publication?

The current Copyright Act states that publication includes:

"..the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending (or gift). The offering to distribute copies of phonorecords to a group of persons for purposes of further distribution, public performance or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."

VI. What is Copyright Notice and What Does it Do?

Copyright owners who use the prescribed notice will absolutely defeat a defense by an infringer that the infringement was "innocent", thereby entitling the owner to money damages. A copyright notice accompanied by the year of first publication and the name of the copyright owner. The notice can appear in any location on the work if it is sufficient to apprise anyone seeking to copy the work of the existence of the copyright.

VII. Moral Rights

In many foreign countries, and under the Berne Convention, a concept referred to as "moral rights" are considered separate from copyrights. The U.S. has been slow to acknowledge the concept, but our participation in the Berne Convention may change that. Moral rights of a creator include

  • The right to be known as the author of the work;
  • The right to prevent others from falsely attributing to a person the authorship of a work that he has not, in fact, created;
  • The right to prevent others from being named as the author of his work;
  • The right to publish a work anonymously or pseudonymously, as well as the right to change his mind at a later date and claim authorship under his own name;
  • The right to prevent others from using the work or the author's name in such a way as to reflect adversely on his professional standing;
  • The right to prevent others from making deforming changes in his work;
  • The right to publish a work, or to withhold it from dissemination; and
  • The right to withdraw a published work from distribution if it no longer represents the views of the author.

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