INTRODUCTION TO COPYRIGHT LAW
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Copyright © 1986-2004 Zegarelli Law Group. All rights reserved.
Written by Gregg R. Zegarelli, Esq.

THE FOUNDATION OF COPYRIGHT LAW

Most people do not realize that copyright law has its foundation in the Constitution of the United States. At the very inception of our nation, our forefathers recognized that the best way to encourage creativity is to give authors legal rights to their works. Article I, Section 8, Clause 8 of the Constitution states: "The Congress shall have the Power . . . To promote the Progress . . . of useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective Writings . . . ." This is frequently called the "copyright clause" of the Constitution.

WHAT IS A COPYRIGHT

According to the Copyright Act of 1976, copyright protection exists for original works of authorship fixed in any tangible medium of expression which can be communicated either directly or with the aid of a machine or device. A work does not need to be a novel or unique in order to satisfy the originality requirement. It needs only to be the original work of independent creation of the author and not copied from other works. Artistic or scholastic merit is not a prerequisite to a finding of originality. To be an original work of authorship, a work must be the product of some creative intellectual or aesthetic labor, however slight or obvious.

A copyright does not protect an idea itself, but it protects the expression of an idea. For example, the idea of a story about the terrors and hardships of a family in the Civil War cannot be copyrighted. But the expression of that idea in a tangible form, such as Gone With The Wind, is copyrightable. However, if there is only one way to express an idea, then actually that expression is the idea. Courts will not grant an author a monopoly to an idea even if it is original.

ACQUIRING A COPYRIGHT

An author obtains a copyright in a work as soon as the work is fixed in a tangible medium expression. Pursuant to recent amendments to the Copyright Act, an author is not required to register the copyright or to use a copyright notice. However, it is usually the best practice to put the general public on notice that proprietary rights are being claimed in the work. Use of a copyright notice prevents an infringing party from claiming that the infringement was innocent.

In the United States, a copyright notice has three parts: 1) the © symbol, the word "Copyright," OR the abbreviation "Copr."; 2) the year of first publication; and 3) the name of the owner of the copyright. For example: "Copr. 1991 John Doe" or "Copyright 1991 John Doe." For unpublished works, add the phrase "Unpublished Work" to the beginning of the notice. Add the phrase "All rights reserved" to the end of the notice if distribution may occur in a Latin American country.

The © symbol is preferable to the words "Copyright" or "Copr." because it complies with both the Copyright Act and the requirements of most European countries. Although additional language such as "Reproduction prohibited, except with the prior express written consent of the author" does not affect the validity of the copyright notice, it is often used as a deterrent to unauthorized copying. The copyright notice should be in an obvious location.

LEGAL RIGHTS GRANTED

Copyright is spelled "right" rather than "write" because it is a legal right to copy. In fact, a copyright grants the author five exclusive legal rights. These include the rights of: 1) Reproduction; 2) Derivation; 3) Distribution; 4) Performance; and 5) Display.

1. Reproduction. The reproduction right allows the copyright owner the exclusive right to reproduce the work. However, in the case of computer software, there are certain exceptions.

The unique problems associated with computer software protection prompted Congress to establish the National Commission on New Technological Uses of Copyrighted Works ("CONTU"). As a result of CONTU's recommendations, Congress amended the Copyright Act so that a copyright is not infringed if a purchaser of computer software makes a copy of, or adapts, the software if: 1) the adaptation is an essential step in the utilization of the computer program; or 2) the new copy is for backup purposes. Thus, a purchaser of computer software may "copy" the program from disk into random access memory, since that is an essential step in the software's utilization. In addition, the purchaser may make a backup copy without infringing the developer's copyright. However, a purchaser may be liable for using the software in a way precluded by contract.

A software developer has the option to sell the software or sell a license to use the software. If a developer sells copyrighted software, then the new owner may make backup copies without violating the Copyright Act. However, if the developer sells a license to use the software, then the general rule is that the license may preclude the purchaser from making copies, decompiling, etc. In present practice, mass-distributed software is usually sold vis-a-vis a license agreement which precludes certain actions. However, the extent to which a contract can preclude an action otherwise permitted by the Copyright Act is in question.

2. Derivative Works. The derivation right gives the copyright owner ownership of all works which have been derived from the original. This includes all translations, modifications, condensations, or any other form in which a work may be recast, transformed or adapted. To qualify for protection as a derivative work, it must contain "some substantial, not trivial, originality." In general, a work consisting of editorial revisions, annotations, elaborations, or other modifications that, as a whole, represent and original work of authorship is a derivative work.

3. Distribution. The distribution right allows the copyright owner to prohibit others from distributing the work. However, in light of the First Sale Doctrine, once the copyright owner makes a sale of a copy of the work, the new owner is permitted to transfer that copy of the work. Selling the material in which a copyright is embodied is not the same as transferring the copyright itself. For example, if you purchase a copy of Gone With The Wind, you own that copy of the work, and you may re-sell it when you are finished reading it. Even though you purchased a copy of the book, you did not purchase the copyright. However, the author's right prevents the purchaser from copying the work.

4. Performance. The right of performance prevents the user from publicly performing literary, musical, dramatic, choreographic, pantomime, motion picture, and other audiovisual works. The right is not applicable to pictorial, graphic, and sculptural works or recordings.

5. Display. The right of display prevents owners of a copy of a copyrighted work from displaying that work to "more than one image at a time . . . ." For example, over terminals of a computer network.

It is important to note that the aforementioned rights are severable. Therefore, a copyright owner has complete control as to whether to sell or license all or any portion of any of the legal rights.

Also, recent revisions to the Copyright Act provide that authors who create works not as a work made for hire may transfer the copyright and still retain the rights of attribution and integrity. Basically, the new law provides that an author retains the right to claim authorship of the work, and may prevent certain mutilations of the work. The law also provides that transferring the ownership of a copyright will not automatically transfer the rights of attribution and integrity. Those rights must be expressly and specifically transferred.

OWNERSHIP

Ownership of a copyright can be addressed in terms of who has ownership, and for how long. According to the Copyright Act, copyright ownership "vests initially in the author or authors of the work." As a general rule, the author is the party who actually creates the work, i.e. the person who translates an idea into a fixed, tangible expression. It is fundamentally important to note that the law does not provide that the person paying for the work is the owner of the work. However, the Copyright Act carves out an important exception if the work is considered a "work made for hire." If the work is made for hire, then ownership will be in the person for whom the work was prepared.

Works Made for Hire. The Act defines a "work made for hire" as: 1) a work prepared by an employee within the scope of his or her employment; OR 2) a work specially commissioned for: a) use as a contribution to a collective work; b) part of a motion picture or audiovisual work; c) a translation; d) a supplemental work; e) a compilation; f) instructional text; g) answer material for a test; or h) an atlas; AND it must also be expressly agreed in writing that the work is "a work made for hire."

In other words, an independent contractor who is the author of a work owns the work, unless the work falls within one of the enumerated categories and there is a writing that identifies the work as made for hire. You could call it a "caveat-emptor" market: if you're the purchaser of a work of authorship, the burden is on you to ensure that you own the work-product. You will want to avoid the "what do you mean I don't own it, I paid for it, didn't I?" scenario. Therefore, if you are purchasing a work and you intend to own it, then consider the following:

1. Is the author an employee? If so, then the work is made for hire and the employer will be the owner. Whether a person is an "employee" for purposes of copyright law, is a function of many factors, including: the right to control performance of the work; whether the author is in a separate and distinct occupation or business; the extent of supervision; the level of skill; ownership of equipment; length of service; method of payment; payroll withholdings; and whether the parties believed that they were creating a master-servant relationship. No one factor is controlling.

2. Is the type of work in one of the enumerated categories? If so, and if there is also a writing describing the work as made for hire, then the purchaser will be the owner.

Otherwise, the best way, and arguable the only way, to obtain ownership of a copyright is to have pre-development transfer language in a written agreement. For example, an agreement that the author, who would otherwise own the work, will waive all rights and assign all right, title and interest in the work to the purchaser. The writing must bind the developer and his or her heirs and assigns. Other ways include providing in the agreement that the work shall be a "work made for hire," or creating an arrangement for joint ownership of the work.

Term of Ownership. An individual author will obtain proprietary rights for the author's life plus 50 years. A "joint work" is prepared by two or more authors who intend that their contributions be merged into inseparable or interdependent parts of a unitary whole. In the case of a joint work by authors who did not work for hire, the copyright endures for the life of the last surviving author plus 50 years. In the case of anonymous works, pseudonymous works, or works made for hire, the copyright endures for a term of 75 years from the year of first publication, or a term of 100 years from the year of creation, whichever occurs first.

INFRINGEMENT

If the work is copyrightable, then the author will have obtained copyright protection at the time of fixing the work in a tangible medium of expression. Registering the copyright with the Copyright Office is not necessary to obtain copyright protection. However, if registered, a copyright owner may bring suit against an alleged infringer in federal court. Basically, the owner will have the burden to prove that the alleged infringer had access to the original and that there is a substantial similarity between or among the works in question. In computer software cases, the courts have evaluated the "look and feel" of the user interface, rather than the traditional approach of reviewing the similarity of the program code, in order to determine whether infringement has occurred. If the work is registered within three months after the date of first publication, then statutory damages and attorney fees are available. Statutory damages are between $200 and $20,000. If the infringement is intentional, statutory damages can be as much as $100,000. Statutory damages, unlike actual damages, do not require proof of actual loss. The mere fact that the infringement was proved is sufficient.

If the work is not registered within three months after the date of first publication, statutory damages and attorney's fees are not available. The claimant must then prove actual damages. If the was first published in the United States and not registered before the time of the infringement, then the copyright owner must register the copyright before filing a lawsuit.

REGISTERING A COPYRIGHT

In order to register a copyright one must: 1) complete the appropriate copyright form; and 2) pay the fee, which is usually $20; and 3) the author must generally make a deposit of two copies of the "best edition" of the work in the Library of Congress. In the case of software, the deposit requirement consists of providing the first 25 pages and last 25 pages of the source code reproduced in a form visually perceptible without the aid of a machine or device, together with the page containing the copyright notice; however, there are exceptions if there are no removed sections of code. In software situations, trade secrets must be protected from disclosure. In that case, the Copyright Office may grant Special Relief, and an author may be permitted to deposit blacked-out portions of the source code or deposit a combination of source and object code.

CONCLUSION

Copyright provides an author with an inexpensive and effective method of protecting creative works.