COPYRIGHTS

WHAT DOES A COPYRIGHT PROTECT?

Protection is given to works of authorship fixed in any tangible medium of expression, now known or later developed, from which the works can be perceived directly or with the aid of a machine or device.  Nonexclusive categories of works of authorship are listed.

Literary works - this category is embodied in books, poems, periodicals, computer punch cards, microfilm, etc.

Musical works, including any accompanying words - this category is not necessarily written music, but also includes recorded music (such as tapes) when the composer has not reduced the work to written music.  This is a statutory overruling of prior act jurisprudence which stated that piano rolls did not constitute intelligible notation.  Words alone, which are adaptable to music are not a musical work, but are copyrightable as a literary work.

Dramatic works, including accompanying music -this category embodies the obvious, plays, and is defined in the jurisprudence in various ways, such as "a story - a thread of consecutively related events - either narrated or presented by dialogue or action or both."  Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D. Cal. 1938)

Pantomimes and choreographic works - this category includes movement without speech and dance, whether dramatic or abstract.  Fixation can be by verbal description, dance notation, pictorial or graphic diagrams, or a combination.

Pictorial, graphic, and sculptural works - includes by definition two-dimensional and three-dimensional works of fine, graphic, and  applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, and models.

Motion pictures and other audiovisual works - simplified, this includes works comprising related images capable of being shown by a machine or device.

Sound recordings - this category definitionally includes the fixation of a series of musical, spoken, or other sounds, but not sounds accompanying an audiovisual work.

When the work is derived in art from another work (derivative work) or when the work is a collection of other works (compilation), then the protection granted only extends to the material contributed by the author of such a work and not to any of the pre-existing material, and does not extend at all to any portion of the work in which the preexisting material was used unlawfully.

WHAT ARE THE EXTENT OF THE RIGHTS GRANTED?

The exclusive rights granted to a copyright owner are as follows (17 U.S.C. §106):

1.  To reproduce the work in copies or phono-records;

2.  To prepare derivative works based on the copyrighted work;

3.  To distribute copies of the work to the public by transfer of ownership, or by rental, lease, or lending;

4.  In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the work in public; and

5.  In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the work in public.

WHAT ARE THE LIMITATIONS ON THE RIGHTS GRANTED?

There are limitations on the exclusive rights granted.

1.  Fair use (17 U.S.C.A. §107) allows for use for specified purposes, such as education, without infringement.  The statute specifies factors which must be considered in determining whether a use is fair use.

2.  Libraries and archives are allowed certain latitudes intricately discussed in the statute (17 U.S.C.A. § 108).

3.  Certain limitations pertain to phono-records (17 U.S.C.A. § 109).

4.  17 U.S.C.A. § 110 pertains to exemption of certain performances and displays, again relating largely to instructional or educational use which is noncommercial.

5.  17 U.S.C.A. §§ 111-112 deal with primary and secondary transmissions embodying a performance or display of the work, discussing in detail the provisions governing such transmission by radio, television and cable systems.

6.  17 U.S.C.A. § 113 attempts to again distinguish between the work and any useful article embodying the work or containing the work.

7.  The rights dealing with sound recordings and nondramatic musical works are limited by 17 U.S.C.A. §§ 114-116A.  The rights in a sound recording do not include the right of performance.  Compulsory licenses are created and governed by the statute.

8.  Back-up copies of computer programs are exempted from infringement by 17 U.S.C.A. § 117.

9.  Public broadcasting is addressed by 17 U.S.C.A. §118.

10.  Secondary transmissions of super-stations and network stations for private home viewing are addressed by 17 U.S.C.A. 119.

COPYRIGHT OWNERSHIP AND TRANSFER

Ownership is initially vested in the author.  Coauthors are co-owners of the copyright in the work.

A work made for hire generally renders the employer or other person for whom the work was performed is the author (and owner) of the copyright, unless there is a written agreement otherwise.

A copyright is personal property and may be transferred in whole or in part by any legal means, including testate or intestate succession.  Any of the exclusive rights specified in § 106 may be transferred and owned separately, with all of the attendant rights and remedies accorded to the copyright owner.

Ownership of a copyright, or any of the exclusive rights thereunder, is distinct from the ownership of any material object in which the work is embodied.

(Readers should note that this is a complex area of the copyright law, and as such, are encouraged to consult an attorney prior to aquiring or transferring copyright rights to another person.)

WHAT IS THE DURATION OF A COPYRIGHT?

Generally, for works created on or after January 1, 1978, copyright subsists from the date of creation and endures for the life of the author, plus 70 years after the author's death.  For anonymous works, pseudonymous works and works made for hire, the term is 95 years from the year of first publication, or a term of 120 years from the year of its creation, whichever expires first.

Copyrights now exist as soon as they are created.
 
COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION

Whenever a work is published a notice of copyright may be placed on publicly distributed copies from which the work can be visually perceived.

There are three requirements for the notice:

1.  The symbol © (the letter C in a circle), or the word "Copyright", or the abbreviation "Copr."; and

2.  The year of first publication of the work (the statute qualifies this somewhat); and

3.  The name of the owner of the copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

There is a mandatory deposit requirement for published works, the deposit to be made to the Library of Congress within three months after the date of publication.

Registration of copyright is permitted and encouraged by statute, but is not required.  However, registration is a prerequisite for suit, as well as a prerequisite for collection of statutory damages or attorney's fees.
 
COPYRIGHT INFRINGEMENT AND REMEDIES

The owner of an exclusive right granted by the Act is entitled to enforce it.  The violator of such a right is an infringer.

Remedies for infringement include injunction, actual damages, statutory damages, and profits.  Statutory damages are electable at any time before final judgment, and can range from $500-$20,000 for each work infringed.  Repeated infringements of a single work have been held to be subject to a single award of statutory damages.  If the infringement was committed willfully, the statutory damages can be increased to not more than $100,000.  Additionally, costs and attorney's fees may be awarded by the court.

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