Copyright Law

Brief History of Copyright

Many entertainment and business professionals deal mostly with copyright law.  The word “copy-right” essentially means the right to copy. Originally, copyright was a right only held by authors and it only covered copying. Copyright was developed from the U.S. Constitution which states: “The Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” The key phrase here, is the exclusive right. Congress immediately passed the copyright law of 1790 which gave authors the absolute monopoly over who could make a copy of their creations in order to encourage them to create new works. Originally, copyright only lasted for a period of 14 years with an option to extend the right for another 14 years.

Copyright Law Today

Today, copyright protection has expanded. Copyright law now gives authors a monopoly over much more than mere copying of their works. The exclusive rights of a copyright owner has expanded and evolved due to modern –day advances. Today, copyright protection lasts for much longer than 14 years. Also, today, the categories of works that are covered by copyright protections has expanded more than the original list of just maps, charts, and books.

Copyright is the basis for everything.  The Copyright Act is the legislation passed by Congress. Copyright is inherent in a work at the moment of its creation. Copyright protects original works of authorship.  Original means that it has been originated by the author and that it has some basic essence of originality. It is more than just a list. It must have some minimum form of originality.  Copyright protects works that are in a tangible medium of expression. Even today choreography can be protected as there exists a means of recording choreography just as in the same way music is recorded on a page.  To be an author, the person must have created the work or have employed the individual who created the work.

Copyright protects the expression of an idea, but not the idea itself.  However, in California, ideas may be protected by the legal doctrine of implied contract.  There must be an understanding that if the idea is used the person who pitched that idea will be compensated. 

Copyright Infringement

If the work has been registered with the United States Copyright Office prior to the date of infringement, the copyright holder may bring an action in federal court.  The plaintiff may request statutory damages. Another benefit of the Copyright Act is the ability to collect attorney fees. Generally, a copyright infringement case at a minimum will cost the plaintiff $50,000.00.    

Must prove two elements in a copyright infringement lawsuit: (1) access, and (2) substantial similarity.  Access means an opportunity to steal the work. 

There is a split in the jurisdictions as to what makes up a substantial similarity.  Extrinsic and intrinsic test. Difference between the 9th Circuit and 2nd Circuit, where the majority of copyright infringement cases are litigated. 

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 the employer is considered 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 commissioned 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 to be done. There is a narrow list of works pursuant to copyright law that may be considered 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; and
  9. A supplementary work.

The concept of work for hire was developed as a result of the motion picture industry. In the early 1900’s, the early film entrepreneurs and movie moguls realized that they had to lobby for legal protection because there were so many creative components involved in the production of a film.

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 had to be registered with the Copyright Office and have a notice of copyright in order for it to be protected. This has since evolved. Copyright protection attaches automatically and immediately once a work is created and expressed in a tangible form. Copyright does not protect ideas. Copyright 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 from 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,

(2) The right to prepare a derivative work,

(3) The right to distribute the work, and

(4) The right to publicly perform the work.

  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.

  1. 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 required.

  1. 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.

  1. The right to publicly perform the work.

Every time a movie is played in the theaters, 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 charged or if it is for charity of for free. In order to perform a work to the public, permission is required from the copyright owner.

Two other exclusive rights are important to note:

  1. The right to publicly display a work (which involves images), and
  2. The right to digital audio transmission of sound recordings.

The types of creations expressed in tangible medium that are protected by copyright include: books, plays, songs, musical compositions, music recordings (even if the music is itself part of the public domain), photographs, paintings, sculptures, jewelry, choreography, computer programs, movies, scripts, treatments for scripts, and translations.

Copyright Lawyer

Contact The Sterling Firm to speak with an experienced copyright lawyer.  Call (310) 498-2750