Intellectual Property Law - Copyright (size reduced)

Copyright Law Tip

Who Is The Copyright Owner? 

Copyright law states that the creator of a work is its author. This is true, however there are exceptions.  The first exception is employment relationships.  If the creator is an employee working within the course and scope of employment, then consider the employer is the author of the creative work. The second exception is a work for hire relationship.  If the creator is not an employee but is an independent contractor or an independent person has commission to write a script or create another category of creative work and there exists a signed written agreement between the parties expressly stating that the work is a work for hire, then the author is the person or company who paid for the work.  There is a narrow list of works pursuant to copyright law that may consider to be work for hire. These are:

  1. A contribution to a collective work
  2. Part of a motion picture or other audio-visual work
  3. A translation
  4. A compilation
  5. An instructional text
  6. A test
  7. Answer material for a test
  8. An atlas
  9. A supplementary work

Copyright Protection Inheres At The Moment of Creation

The moment that a creation takes on a tangible form, copyright inheres in the work.  Prior to 1978, the work must register with the Copyright Office and have a notice of copyright in order for it to protect the work.  This has since evolved.  Copyright protection attaches automatically and immediately once a work is created and expressed in a tangible form.  This does not protect ideas.  It protects the embodiment of those ideas in a tangible medium.

Once a creative idea is expressed in a tangible form, the creator has a monopoly over the uses of the work and has exclusive rights to that work.  It is important to note that it is strongly encouraged that you register your work for copyright protection with the U.S. Copyright Office.  Registration grants federal court jurisdiction in the case of copyright infringement and also grants certain presumptions to the copyright owner.  Federal court jurisdiction also allows for special remedies such as injunctive relief and statutory damages in the case of a copyright infringement.

How Long Does Copyright Protection Last? 

Today, copyright protection lasts for the life of the author plus 70 years.  If the author is a corporation because the work was created in an employment relationship or because of a work for hire agreement, then the copyright protection lasts the shorter of 95 years from the day the work was published or 120 years form the day it was created.  A work is published if it is presented to the public – no matter for charity or for profit.

Exclusive Rights of Copyright Owner

Copyright protection grants to the owner certain exclusive rights.  If any other person wants these rights, that person must get the permission of the copyright owner.  There are four main rights that come into play:

  1.  The right to make copies.  Even making a single copy of a protected work is a violation of copyright law.  There are exceptions, however, the biggest being the fair use exception.  The core of copyright law still is the exclusive right of the copyright owner to makes copies of his or her own work.  In order to make a copy, a person must get the permission of the copyright owner.
  2.  The right to prepare a derivative work.  A derivative work is a modification or alteration of an already existing work.  Copyright law protects original works of authorship.  For example, a derivative work can be a movie that is made from a script, a book, or another movie, or even a knock-off painting.  In order to modify a work, permission from the copyright owner is a requirement.
  3.  The right to distribute the work.  Distribution occurs when you make the copyrighted work available to the public.  This can be done through selling the work, transfers of ownership, or licensing.  If someone wants to distribute a copyrighted work to the public, that person must get the permission of the copyright owner.
  4.  The right to publicly perform the work.  Every time a movie is played in the theatres, aired on Netflix, or a song is played at a concert, that is a public performance of a work.  The test for whether a work is being publicly performed is whether the public is invited.  This is regardless of whether a fee is being charge or if it is for charity of for free.  In order to perform a work to the public, permission is a requirement from the copyright owner.

Substantial Similarity In Copyright Law

It matters where you sue! A copyright plaintiff has the option of suing an infringer in two federal courts: California or New York. Does it matter which one is the right court to file? The answer appears to be yes: a complaint filed in California is often more likely to survive a pre-discovery motion to dismiss than one filed in New York.

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