INTRODUCTION TO COPYRIGHT LAW
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Copyright © 1986-2004
All rights reserved.
R. Zegarelli, Esq.
THE FOUNDATION OF COPYRIGHT LAW
Most people do not realize that copyright law has its foundation in the
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 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
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?
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.
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.
Copyright provides an author with an inexpensive and effective method of protecting
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