Our Boston Copyright Attorney at Bay State IP will help in securing protection for books, published books, translations, derivative works, maps, dramatic works, paintings, photographs, sound recordings, motion pictures, and computer programs whether you are an artist, author and employing entity, is essential in all industries. At the center of this protection is a thoroughly deliberated strategy for protecting a myriad of differing media in a cost effective manner, be it as individual pieces, compilations or some hybrid thereof. Our team at Bay State IP recognizes the importance of works and how this protection is an integral element in safeguarding your creativity.
Statute Basics
Copyrights are governed by the 1976 Copyright Act, which took effect January 1, 1978. Since copyright is a heavily statutory subject matter, it is essential to always start by looking to the statute for answers to any questions one might have. Copyright law is also embodied in the Constitution under Copyright and Patent Clause of Article 1, Section 8, Clause 8. The purpose of the clause is “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.”
Duration and Renewal
A copyright’s duration has been extended many times over time. Currently, copyright protections last for the life of the author plus an additional 70 years. After 1992, renewal of copyrights has become automatic.
What a Copyright can Protect
Copyrights can cover a wide range of creations, ranging from photographs and art work to computer software. Section 102(a) of the Act categorizes subject matter eligible for protection into eight categories:1) literary works (including computer software, object code, ROM and operating system programs), 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. This list is illustrative and not absolute. Additionally, section 101 of the Act further defines five of these categories: architectural works; literary works; pictorial, graphic, and sculptural works; motion pictures and audiovisual works; sounds recordings.
Copyright also protects derivative works. Derivative works are works based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which as a whole, represent an original work of authorship are also derivative works. The key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.
Collective works and compilations are also protectable and are defined in Section 101 of the Act. A collective work is periodical issue, anthology, or encyclopedia, in which a number of contributions, consisting of separate and independent works in themselves, which are assembled into a collective work. A compilation is a work formed by the collection and assembling of preexisting materials or of data one selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship (includes collective works); keep in mind that the arrangement of the information is very important.
One must remember that a copyright protects an author’s expression of an idea, but not the idea or facts themselves. For example, if you take a picture of an item, the item itself is not protected, but what is protected is how you portrayed the item through light, positioning or any other effects. Section 102(b) of the Act states that “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principal, discovery, regardless of form in which it is described, explained, illustrated, or embodied in such work.”
Additionally a copyright may be unattainable if when the subject matter that one is seeking to be protected is very narrow. If there is only one form of expression, or at best only a limited number of possible expressions, then to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance and prevent the use and growth of that work.
Furthermore, if a work is functional, a copyright will not be granted unless the non-functional part can be separated from the functional part. In that case the non-functional part will be granted the copyright. For example, fashion is not copyrightable, because you wear it (functional), but patterns and pictures/graphic designs on shirts may be copyrightable because they can be separated from the functional aspects of the garment.
Acquiring a Copyright
For one to acquire a copyright your work needs fixation and originality under Section 102 of the Act. The section states that “original works of authorship fixed in a tangible medium of expression” can be copyrighted. To be fixed a work needs to be tangible, stable, can be perceived, reproduced, or communicated by others. To be original, a work needs to be an independent creation by the author and needs a modest quantum of creativity.
There are many benefits to federal copyright registration. First, federal registration is a requirement to bring federal copyright infringement suit, one has to register before the infringement occurs to get statutory damages, there is a presumption of validity, and is a useful asset for company.
To register for a copyright, one must go to the Copyright office’s website (www.copyright.gov) and fill out the appropriate forms. It costs $35 to file a copyright application, if it is done electronically, and it can take a few months for Copyright Office to process the application.
Ownership and Transfer of Copyrights
Generally, as a default, a copyright is owned by the original authors. However if a work is a Work for Hire, then it is likely that the employer who commissioned, funded, and oversaw the creation of the work is the owner, and not the employee that actually made the work.
Additionally, it is possible for a work to be a Joint Work, which is when a work is prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole, each sharing equally in all the rights granted by the ownership of a copyright.
Furthermore, a copyright can be assigned, which must be in writing. An amendment was made to the Act that created a termination. This termination right comes into effect when, after 35 years after an assignment is made, the original author can choose to take back their assigned copyrights. This right gives authors another bite of the apple, but is not available for Work for Hire copyright assignments.
Rights Granted by Obtaining a Copyright
The Act gives a copyright owner certain exclusive rights to their works. Listed under Section 106, there are six exclusive rights that are granted to a copyright owner: 1) reproduction, 2) adaptation, 3) distribution, 4) public performance, 5) public display, 6) digital public performance. These rights gives the owner of the copyright the sole right to do any of the above with their work, and to sue for infringement anyone who uses the copyright owner’s work in any of these ways, without permission.
VARA (Visual Artists Rights Act)
This is a newer addition to the Act under Section106A. VARA protects some moral rights over works and was added to the Copyright Act because of an obligation the US has under international treaties it is a party to. VARA applies only to “works of visual art” (as defined in 101) and gives the author’s a right to “prevent any intentional destruction, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation,” and a right to “prevent any destruction of a work of recognized stature.” VARA rights do not apply to Works for Hire, these rights can never be assigned, however they can be waived, and they generally last for life of author for post 1991.