Luedeka, Neely & Graham

What is a Copyright?

Copyrights protect original artistic and literary works that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

1. literary works
2. musical works, including any accompanying words
3. dramatic works, including any accompanying music
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings
8. architectural works

These categories are viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

Several categories of material are generally not eligible for federal copyright protection. These include among others:

• Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been recorded, or improvisational speeches or performances that have not been written or recorded)
• Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
• Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
• Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Copyright protection is provided by the laws of the United States (title 17, U.S. Code) to the authors of the ?original works of authorship.? This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords;
• To prepare derivative works based upon the work;
• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
• To display the copyrighted work publicly, 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; and

• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Copyright protection commences at the time the work is ?created? in fixed form and immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. A work is "created" when it is fixed in a copy or phonorecord for the first time. "Copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. "Phonorecords" are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song can be fixed in sheet music or on a compact disc, or both.

For works that were created on or after January 1, 1978, copyright protection lasts from the moment of its creation and endures for the author's life plus an additional 70 years after the author's death. In the case of a joint work prepared by two or more authors the term lasts for 70 years after the last surviving author's death. For works made for employers, commissioned work, or for anonymous work, the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

In general, copyright registration is not a condition of copyright protection. However, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

• Registration establishes a public record of the copyright claim.
• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
• If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory treble 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 allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

Registration of a copyright is a very simple, inexpensive procedure involving only proper completion of a form which is then mailed to the Copyright Office with appropriate samples of the copyrighted work and a registration fee.

Although a copyright notice is no longer required by law, it is often beneficial to include notice on any copyrighted material. Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except under limited circumstances. Innocent infringement occurs when the infringer did not realize that the work was protected.

The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.

The notice for visually perceptible copies should contain the following three elements:

1. The symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr.";
2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient; and
3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Example: © 2002 John Doe

The "C in a circle" notice is used only on "visually perceptible copies." Certain kinds of works--for example, musical, dramatic, and literary works--may be fixed not in "copies" but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are "phonorecords" and not "copies," the "C in a circle" notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded, but rather the symbol (the letter P in a circle) is used instead.

If you need more information about copyrights, please contact us.