Book a Free Consultation:
Toll-free 1-800-805-0009
Boston Office:
92 State Street
Boston, MA 02109
617-720-0091
617-720-6307 Fax
New Hampshire:
159 Main Street
Nashua, NH 03060
603-882-7316
603-882-6557 Fax
About Copyrights
What is a Copyright?
Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. The Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to: (1) reproduce the copyrighted work in copies or phonorecords; (2) prepare derivative works based upon the copyrighted work; (3) distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; (5) 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 (6) perform the work publicly by means of a digital audio transmission.
It is important not to confuse patents and trademarks with copyrights. Patents protect ideas and trademarks protect words, slogans, or logos which identify source.
Obtaining a Copyright
Copyright protection subsists from the time the work is created in fixed form; that is, it is an incident of the process of authorship. The copyright in the work of authorship immediately becomes the property of the author who created it. Only the author or those deriving their rights through the author can rightfully claim copyright. In the case of works made for hire, the employer and not the employee is considered to be the author. A "work made for hire" is: (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
The way in which copyright protection is secured under the present law is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration. Copyright is secured automatically when the work is created, and 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, CD's, or LP's. Thus, for example, a song (the "work") can be fixed in sheet music ("copies") or in phonograph disks ("phonorecords"), or both. Publication is no longer the key to obtaining statutory copyright as it was under earlier Copyright laws. However, publication remains important to copyright owners for several reasons including: (1) when a work is published, it may bear a notice of copyright to identify the year of publication and the name of the copyright owner and to inform the public that the work is protected by copyright; (2) works published before March 1, 1989, must bear the notice or risk loss of copyright protection; (3) works that are published in the United States are subject to mandatory deposit with the Library of Congress; (4) publication of a work can affect the limitations on the exclusive rights of the copyright owner; (5) the year of publication may determine the duration of copyright protection for anonymous, pseudonymous, and works made for hire; and (6) deposit requirements for registration of published works differ from those for registration of unpublished works.
Why Register a Copyright?
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, except in one specific situation, registration is not a condition of copyright protection. Even though registration is not generally a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following: (1) registration establishes a public record of the copyright claim; (2) before an infringement suit may be filed in court, registration is necessary for works of U.S. origin and for foreign works not originating in a Berne Union country; (3) 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; and (4) if registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory 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.
Additionally copyright 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.
Types of Applications for Federal Registration
There are many different copyright application forms, each is designed to register a different type of work. Your attorney can provide you with the right form for the work you wish to register.
There is, however, no such thing as an "international copyright" that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions. The United States belongs to both global, multilateral copyright treaties--the Universal Copyright Convention (UCC) and the Berne Convention for the Protection of Literary and Artistic Works. An author who wishes protection for his or her work in a particular country should first find out the extent of protection of foreign works in that country. If possible, this should be done before the work is published anywhere, since protection may often depend on the facts existing at the time of first publication. If the country in which protection is sought is a party to one of the international copyright conventions, the work may generally be protected by complying with the conditions of the convention. Even if the work cannot be brought under an international convention, protection under the specific provisions of the country's national laws may still be possible. Some countries, however, offer little or no copyright protection for foreign works.
Copyright Notice
For works first published on and after March 1, 1989, use of the copyright notice is optional, though highly recommended. Before March 1, 1989, the use of the notice was mandatory on all published works, and any work first published before that date must bear a notice or risk loss of copyright protection. Use of the notice is recommended 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 the work carries a proper notice, the court will not allow a defendant to claim "innocent infringement"--that is, that he or she did not realize that the work is protected. (A successful innocent infringement claim may result in a reduction in damages that the copyright owner would otherwise receive.)
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.
