Our attorneys advise clients regarding the protection provided by law to copyrightable works. Below, we answer some frequently asked questions concerning copyrights. Copyright law has changed significantly over the years. This summary does not address prior versions of the federal copyright statute. The summary is provided for informational purposes only, and does not constitute legal advice. Any specific question about copyright law should be directed to an attorney in our Copyright Practice Group.
Q: What is a copyright?
A: The term “copyright” refers to a set of intangible property rights that an author has in certain works that he or she has created. These rights are governed by federal statute, and include the exclusive right to reproduce the work, to prepare works derived from the copyrighted work, to distribute copies to the public, and to perform or display the work publicly. The copyright owner can prevent others from reproducing or using the copyrighted work in an unauthorized manner, subject to certain “fair use” exceptions, such as limited use of the material for teaching, news reporting and commentary.
The copyrights in a work are separate from the work itself and, in the absence of an agreement to the contrary, are not transferred when the work itself is sold or given away. Thus, an artist who creates a painting and sells it to a collector has not given up the copyrights in the work and may prevent the collector from making and selling posters or postcards of the painting. Although the collector does not have copyrights in the work, under U.S. copyright law, he or she does have the right to display and sell the work itself.
Q: What kinds of material are protected by copyright?
A: The works protected by the federal copyright laws include literary works (including computer programs), musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and audiovisual works, sound recordings, and architectural works.
Q: What is the difference between copyright, patent and trademark?
A: Copyright law, patent law and trademark law are independent legal doctrines, and are governed by separate federal statutes. However, some works may be protected under more than one doctrine. Generally speaking, copyright law protects original works of authorship that are fixed in a tangible form of expression, such as books, paintings, sculptures and films. Patent law protects novel and non-obvious inventions, such as machines, manufacturing processes and synthetic drugs. Trademark law protects brand names, such as Reebok® and Pepsi®.
Copyright law protects the expression of a work, but not the underlying ideas. Thus, the copyright owner of a movie cannot prevent others from making movies with the same basic plot elements or themes unless so much material is copied from the original work that the works are substantially similar. Ideas, methods or processes contained in an expression, though not protected under copyright law, can sometimes be protected under patent law. This is often the case with computer software. In addition, although copyright law often does not apply to titles, names, short phrases or slogans, these works may be protected under trademark law. Because our firm’s practice includes patent law and trademark law in additional to copyright law, we are able to assist our clients in developing the best strategy for the protection of their intellectual property rights.
Q: How are copyrights obtained?
A: Under the current law, at the moment that a copyrightable work is physically created, it is automatically and immediately protected by copyright law. It is not necessary to obtain a copyright registration, although there are several advantages to doing so. A copyright notice may be placed on publicly distributed copies of the work regardless of whether the copyright has been registered. While not required by law for works first published after March 1, 1989, a copyright notice provides the important function of informing the public of the author’s claim of copyright and, in the event of copyright infringement litigation, can eliminate the defense of “innocent infringement” (i.e. that the infringer was not aware of the copyright claim), which may affect the amount of damages the owner of a registered copyright can recover.
Q: Who owns the copyrights in works?
A: Generally speaking, the author of a work is the sole owner of the copyrights in that work. In the case of a work that is jointly authored by two or more people, the copyrights will be owned jointly by those people in equal shares. These rights can be altered by contract, however, and it is a good idea to decide at the beginning of a project who the copyright owner will be and to prepare a written agreement reflecting that arrangement in order to minimize the possibility of litigation later on.
Q: Who owns the copyrights in works made for hire?
A: The copyright statute provides that the owner of copyrights in a “work for hire” is the party for whom the work was created, not the party that actually created the work. What is a work for hire? The statute defines a work for hire as (1) a work prepared by an employee within the scope of his or her employment; or (2) a work prepared for another if the parties enter into a written “work for hire” agreement and the works consist of contributions to a collective work, translations, instructional or explanatory texts, and certain other materials specified in the statute. Thus, if an employee prepares a work within the scope of his or her employment, the employer and not the employee is considered to be the author and the copyright owner. Consultants or independent contractors, on the other hand, generally retain the copyrights in the works that they create in the absence of a work for hire agreement. We have advised employers, employees and independent contractors regarding copyright matters and, when necessary, have drafted copyright assignments, licenses and contracts in order to transfer ownership and other rights in accordance with the true intentions of the parties.
Q: Where can I get additional information?
A: For additional information or assistance with a particular copyright issue, please contact a member of our Copyright Practice Group. In addition, the U.S. Copyright Office publishes circulars concerning a number of copyright issues. These circulars can be obtained by calling the Copyright Office at (202) 707-3000 or visiting the Copyright Office’s home page.