Most people have heard the word “copyright” or at least have seen the symbol “©” – but what exactly is a copyright?
Overview of Copyrights
A copyright protects an original work of authorship that is fixed in a tangible form of expression or medium, including literary, dramatic, musical, and artistic works. Copyrighted materials may include books, songs, movies, TV shows, plays, choreography, paintings, computer software, and architecture.
To satisfy the test for being “fixed in a tangible form of expression,” the work must have been recorded or written in some fashion – even if only on one’s computer. A copyright does not protect ideas. Furthermore, a copyright does not protect names, titles, slogans, or logos (although these may be protected as trademarks).
If you have ever wondered why you are prohibited from recording a movie in a theatre, or downloading free music from a disreputable website, it is because that movie or music is copyrighted. Creating an item that qualifies for copyright entitles you to legal rights under the law. By holding a copyright, you exclusively hold the following five rights; (1) to reproduce the work; (2) to distribute copies of the work to the public; (3) to prepare derivative works, or create adaptations based upon the work; (4) to perform the work publicly; and (5) to display the work publicly.
Copyright exists to encourage people to create original works by rewarding them with an exclusive right to profit from that work. Without copyright, there would be no financial incentive to create original works, and your original works could be reproduced and used freely by anyone for profit.
Obtaining a Copyright
Unlike trademarks and patents, you are not required to register your copyright in order to obtain the legal protections it grants. Your work is under copyright protection the moment it is created and fixed in a tangible form. However, in order to bring a lawsuit for infringement of a U.S. work, you must first register your copyright with the U.S. Copyright Office. A registered copyright may entitle its owner to statutory damages and attorney’s fees in successful litigation.
Notice of a copyright is given by using the “©,” followed by the first year of publication for a given work and the authors name, on the work itself. While this notice is no longer a legal requirement for protection, it can be used for evidence that the work is, in fact, under copyright protection.
Once obtained, a copyright lasts for the life of the author and expires on the seventieth anniversary of his or her death. When the author of copyrighted material dies, the copyright generally passes to his or her heirs. Until expiration, copyrights are generally transferrable; transfer can be recorded by submitting documentation to the Copyright Office.
In the event that you create a work within the scope of your employment, or the work was specifically ordered or commissioned in a certain, specified circumstance, the work is considered a “work made for hire.” In this situation, the employer or commissioning party is considered to be the author, and therefore, holder of the copyright. A copyright for a work for hire lasts for 95 years from the date of first publication, or 120 years from year of creation, whichever date occurs first. When a copyright expires, the underlying work enters the public domain. Once a work is a part of the public domain, anyone can reproduce, and use the work freely.
When you believe someone has infringed on your copyright, you can protect your rights by filing a civil lawsuit in federal district court. However, there are two ways someone can use a copyrighted work without being liable for infringement.
First, a user can gain permission to use the work from the copyright holder. If you want to use someone’s copyrighted work, you may simply ask them for permission. To find out who holds a copyright to a certain work, a search can be done through the Copyright Office. For copyrights registered before 1978, a manual search must be conducted. For copyrights registered after 1978, the search can be done online through the Copyright Office’s website. Generally, permission to use a copyright is granted by a license.
The second protection that users can claim is the “fair use doctrine.” This doctrine allows use of a sample or section of a copyright work without permission of the copyright holder when the copying is deemed a “fair use.” Criticism, commenting, news reporting, teaching, and scholarship or research purposes are all considered fair use. There is no certain length of sample or section where the line is drawn between fair use and copyright infringement.
When determining whether the use of a work is considered fair use, four factors must be considered; (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market. These four factors will be considered when determining if an infringement occurred, or the use was lawful under the fair use doctrine.
If you believe your copyright has been infringed, make sure your copyright is registered with the Copyright Office and consult an attorney familiar with copyright infringement suits. Taking these key steps will help to ensure that you protect your copyright.
Tahlia Grassie is a summer intern at FGH. Ms. Grassie holds a B.A. from Arizona State University in journalism and mass communications, and is currently a law student at SMU Dedman School of Law.
Christian S. Kelso is a Senior Associate at Farrow-Gillespie Heath Witter LLP. He practices in the areas of estate planning, wealth preservation and transfer, probate, tax, and transactional corporate law. He earned a J.D. and LL.M. in taxation from SMU’s Dedman School of Law. Mr. Kelso writes and presents for advanced CLE courses and SMU business courses.