• Copyrights
  • January 22, 2004 | Author: Michael D. Bokermann
  • Law Firm: Husch Blackwell LLP - St. Louis Office
  • A copyright protects "original works of authorship" that are fixed in a tangible form of expression. The categories of works that are copyrightable include:

    • Literary Works
    • Musical Works
    • Dramatic Works
    • Pantomimes & Choreographic Works
    • Pictorial, Graphic, & Sculptural Works
    • Motion Pictures & Audiovisual Works
    • Sound Recordings
    • Architectural Works

    Despite offering a generally broad area of protection, the copyright statutes do not offer protection for items such as titles, names, short phrases, slogans, ideas, procedures, methods, systems, processes, concepts, principles, discoveries and inventions. While the copyright statutes provide no protection for these items, other areas of intellectual property law may apply, such as patent law and trademark law.

    The copyright laws offer many exclusive rights and protections for the copyrighted work. Not only does a copyright protect original works from being copied during the life of the copyright, it also offers exclusive rights to the owners of the copyrighted material such as the right to distribute, publicly perform and display the work, and prepare derivative works based on the copyrighted work. Two of the main purposes of a copyright are to protect the commercial value of original work and to protect the author's right to control how that work is used.

    When a copyrighted work is reproduced, performed, distributed, publicly displayed, or made into a derivative work without the permission of the copyright owner, copyright infringement occurs and the copyright owner is entitled to certain remedies. As such, the owner of an enforceable copyright has a great deal of power with respect to how the work is shown to the public.

    A copyright is secured automatically when the work is fixed in a tangible form. Copyrights are personal property that can be owned, purchased, sold, licensed, or used as collateral, and the author of the copyrighted work is generally the owner of the copyright. However, if the work was created by an employee while working within the scope of employment, the work will be considered a work made for hire and ownership of the copyright will belong to the employer. A work specially ordered or commissioned may also be characterized as a work made for hire. The law on the work for hire doctrine is rather complex, and it is best to select an attorney who is familiar with the intricacies of copyright law. For more information on the work for hire doctrine, readers can read the article "Intellectual Property and Confidentiality Agreements for Employees and Independent Contractors" by Dennis Donahue on the Martindale-Hubbell and Husch & Eppenberger web sites (see www.husch.com or www.martindale.com).

    Even though copyright protection is secured automatically and it is not necessary to register the copyright with the Copyright Office, there are many advantages offered to authors who register their copyrights. One important right that is granted to owners of registered copyrights is that they can sue for infringement of their copyrights. Without registering the copyright, the copyright holder cannot sue to enforce the copyright. Other incentives include:

    1. Registration establishes a public record of the copyright claim.
    2. When registration is made before or within 5 years of publication, it establishes prima facia evidence in court that the copyright is valid and that the facts are as stated in the certificate of registration.
    3. When registration is made before or 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. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    Registration may be made at any time within the life of the copyright. The forms and instructions for filing can be obtained at www.copyright.gov/forms. The Copyright Office fee for filing each application is $30.00.

    In general, a copyright notice is used to inform the world of copyright ownership. The notice is not required for copyright protection, but it is recommended practice to place the notice on all copies of the work because a properly affixed copyright notice can remove the availability of an innocent infringer defense in an infringement action. The copyright notice generally includes (1) the copyright symbol ©; (2) the year of creation or first publication; and (3) the name of the copyright owner (e.g., © 2004 Mike Bokermann).

    The term of the copyright protection for a work created on or after January 1, 1978 lasts for the author's life plus an additional 70 years after the author's death. For works made by two or more authors that did not work for hire, the term lasts for 70 years after the last surviving author dies. For works made for hire and for anonymous and pseudonymous works, the duration of the copyright will be 95 years from publication or 120 years from creation, whichever is shorter. Works created before January 1, 1978 are analyzed under a different standard and the term of the copyright depends upon certain factors such as whether the work was published or registered before January 1, 1978.

    These are only a sample of the issues confronted when dealing with copyrighted works. Any assistance with these or other topics regarding copyright law can be obtained by contacting knowledgeable attorneys. Additionally, the web site of the U.S. Copyright Office (www.copyright.gov) is a useful resource for obtaining general information about basic copyright concepts.