Copyright

Copyright law can be an instrumental tool for any individual or business. Copyright law serves as a safeguard for all types of artistic works. Under the Anglo-American, or utilitarian view, granting copyright protection to authors benefits society, such that there exists an incentive for individuals to create. Other parts of the world, such as the European Union, however, have adopted stronger protection for authors, where copyright protection is viewed as a natural or moral right.

Works Protected by Copyright Law

  1. Literary Works 
    Examples:

    • Fictional Works the plot and any well-defined characters.
    • Non-Fictional Works only to the extent of the author’s expressed opinions, not the hard facts.
    • Computer Codes and Programs
  2. Musical Works (including accompanying words);
    Example:

    • Melody
  3. Dramatic Works (including accompanying music);
    Example:

    • Theatrical Performances any work that tells a story.
  4. Pantomimes and Choreographic Works;
    Example:

    • Dance Moves to the extent that it can be written in shorthand.
  5. Pictorial, Graphic, and Sculptural Works;
    * Style, vantage point, and typeface are not protected features.

    Examples:

    • Paintings
    • Photographs
    • Maps depending upon the amount of creativity
  6. Motion Pictures and Other Audiovisual Works;
    Examples:

    • Films
  7. Sound Recordings; and
    *Protection only extends to a particular recorded rendition of a musical work or series of sounds.
  8. Architectural Works.
    Examples:

    • Buildings and Structures

In order to receive copyright protection, the artistic expression must be original. Originality does not require the work to be innovative or novel, as necessary for patent protection. Originality only requires the work to possess an element of creativity. For example, food ingredients, slogans, and song titles generally do not possess the necessary level of creativity.

While the compilation of facts and data may involve great effort and time, the A sweat of the brow used to create a work does not entitle a work to copyright protection. Moreover, although facts and data are not safeguarded by copyright law, opinions infused into facts may entitle a work to copyright protection. Consequently, certain works, particularly audiovisual works, may only obtain creativity based upon the selection, arrangement, and presentation of the work, as a whole.

In addition to originality, the work must be fixed. Fixation demands that the work be preserved in a permanent form. While permanent forms include such typical physical manifestations as writings or musical recordings, emails and computer programs also may entail a fixed work. Moreover, fixation limits copyright protection to only the expression of a work, not the actual underlying idea. Ideas and processes may be protected under patent law. If there is only a limited number of means to express an idea, however, the idea and the expression are deemed to have merged together, such that the expression will not be protected.


Other Protected Works

  1. Useful Arts
    *Only the artistic or aesthetic features capable of standing on their own receive copyright protection.

    Examples:

    • Jewelry
    • Belt Buckles
    • Decorative Ornaments
    • Lamps

    * The functional aspects of the above-listed works are not protected by copyright law.

  2. Compilations
    * The collection of data may be protected so long as there exists some creativity.

    Example:

    • Chinatown Yellow Pages although the Yellow Pages based upon geographic regions do not possess the requisite level of creativity, the Chinatown Yellow Pages require the author to decipher which businesses appeal to the Chinese community.
  3. Collective Works
    * This is a type of compilation, but entails the collection of independently copyrightable works.

    Examples:

    • Periodicals
    • Anthologies
    • Enclyclopedias
  4. Derivative Works
    * Original works that have been significantly transformed from the pre-existing work may receive copyright protection.
    ** The original work cannot be a copyrightable work unless the author of the adapted work is the same author as the pre-existing work.
  5. Works Made For Hire
    * In employment situations, the employer is deemed to be the copyright owner of works created by employees, depending upon whether the work was created within the scope of the job.
    ** For independent contractors, the employer and employee must enter into a written agreement in order for the employer to obtain ownership of the work.
    *** In the European Union, employees are deemed to own the work, while the employers receive a Ashop right@ to use the protected work.
  6. Joint Works
    * All protected works are capable of having more than one author.
    ** Joint authorship requires that each author=s contribution is copyrightable on its own, as well as an intention by the authors to merge their work into a single work.
    *** The intention to merge can be found in the billings or credits of a work.

Under current copyright laws, the author does not need to place a copyright notice on the work in order to receive copyright protection. Once a work is identified as a protected work, the owner is entitled to six exclusive rights.


The Six Copyrights

  1. Duplication;
    * All private and public copies are prohibited.
    ** Copyright law may not protect against copying by public libraries, satellites, and broadcast news entities in the course of news reporting.
    *** Musical works may be remade, or Acovered,@ once compulsory licensing fees have been paid to the copyright holder.
  2. Adaptation;
    * Any transformation of a protected work is prohibited.
    ** Cross-Media Infringement is even possible when a novel is altered into a film, or the capturing of dance steps in a photograph.
  3. Distribution;
    * In order to violate this right, the work must either be disseminated or made available to the public.
    ** Even one person having access to a protected work constitutes a distribution.
    *** Under the First Sale Doctrine, the purchaser of a protected work is permitted to distribute his or her purchased copy.
  4. Public Performance; and
    * A performance is public if it occurs at any place open to the public or where persons gather outside the normal circle of acquaintances; or if it is transmitted by a device.
    ** Persons wishing to publicly perform protected works may obtain licenses from a Performing Rights Society, such as ASCAP, BMI, or SESAC.Examples:

    • Performing a Musical Work in a Department Store
    • Playing a Video at a Video Store
    • Transmission of a Movie from a Hotel Lobby
    • Playing a Protected Work Via the Internet or Email
    • Showing a Movie or Sports Broadcast in a Restaurant (if certain conditions are not satisfied)

    Exemptions:

    • Face to Face Teaching
    • Instructional Broadcasting
    • Religious Services
    • Live Performances (without commercial advantage to anyone)
    • Reception of Broadcasts in a Public Place (by any commonly used device so long as certain conditions are met)
    • Public Performance in Connection with Sale of Records
    • Annual Horticultural and Agricultural Fairs
    • Noncommercial Broadcasts to the Deaf and Blind
    • Certain Performances by Veteran and Fraternal Groups
    • Public Broadcasting
    • Coin Operated Video Games 
  5. Public Display
    * A performance is public is it occurs at any place open to the public or where persons gather outside the normal circle of acquaintances; or if it is transmitted by a device.
    ** The owner of a particular copy can display that copy directly to the public without the author=s consent, but cannot publicly display the work by indirect means, such as a transmission.

    Exemptions:

    • Face to Face Teaching
    • Instructional Broadcast
    • Religious Services
  6. Digital Performance Right in Sound Recordings
    * For Sound Recordings ONLY, there is an additional right, digital audio reproduction transmission.
    ** This right prevents consumers from requesting digital music on demand.

Notwithstanding the numerous limitations, any violation of a copyright owners rights will constitute copyright infringement. One of the major limitations on a copyright holders exclusive right is the well-known fair use defense. Many individuals mistakenly rely upon the preamble of the fair use defense. As a result, people believe that the use of a work for purposes of criticism, comment, news reporting, teaching, scholarship, or research automatically exonerates themselves from any liability for copyright infringement. These types of uses, however, are merely illustrative. A fair use will be determined following an application of the four fair use factors.


The Fair Use Defense

  1. Purpose and Use by Alleged Infringer
    * If the work has been transformed in some manner, then it is more likely to be granted fair use protection.
    ** Transformation of a work requires the user to add something new to the protected work, as well as using the work for purpose distinct from the author=s original use.
    *** Commercial use of a protected work diminishes the likelihood of fair use protection.
  2. Nature of Protected Work
    * Fictional works receive less fair use protection, while factual works weigh in favor of a fair use finding.
  3. Amount and Substantiality of the Portion Used
    * Although only a small portion of the work may be used, analysis focuses on the quality, rather than the quantity.
    ** Courts look to see if the heart of the work has been used.
  4. Effect on the Market
    * According to the United States Supreme Court, this is the most important fair use factor.
    ** The markets include both existing and potential markets.
    *** It does not matter whether the infringing use helped the marketability of the work.
    **** Market impact includes a loss in revenue

The use of a parody is also subject to the fair use analysis. The purpose of a parody is to mimic the original as a humorous form of criticism. In order for a parody to be protected as a fair use, the parody must target the protected work and focus its ridicule on that preexisting work. A book, for example, that discusses the O,J, Simpson trial in the style of Dr. Sueuss Cat In the Hat does not constitute a parody because it does not parody Dr. Suess actual book.

In order for a copyright owner to protect his or her interest, it is crucial that the work be registered with the Copyright Office. A copyright holder cannot initiate a copyright infringement claim until the work has been registered. Moreover, registration of a work entitles the plaintiff to statutory damages, so long as the work has been registered within three (3) months of publication. Statutory damages provide the copyright owner with anywhere between $750.00 and $30,000 for each work that is infringed. If the defendant is aware of the infringement, such that it is willful, damages can be as high as $150,000 for each work that is infringed. If the infringer is unaware, however, such that he or she is innocent, damages may fall below the $750.00 minimum.

In lieu of statutory damages, or if the work was not registered within three (3) months of publication, the plaintiff may recover actual damages and the infringers profits. Actual damages include damage to the value of the plaintiffs market, the plaintiffs loss for not receiving credit for the work, the time utilized by the plaintiff to create the work (if a professional author), plaintiffs travel expenses relating to the creation of the work, and interest. In order to recover the defendants profits, the plaintiff must demonstrate the defendants gross revenue.

The Law Office of Matthew A. Becker handles both copyright registrations and copyright infringement claims.