An Overview of the United States Copyright Law

Steven B. Smith, Esq. | posted 11/02/2007

What Is A Copyright?

A copyright is the legal right to control specific uses of art, books, music, motion pictures, videotapes, photographs, software programs, and many other kinds of creative material. Copyright is granted by law in most countries and in the United States by a federal statute called The Copyright Act of 1976 ("Copyright Act"). This statute governs who owns a copyright, what it consists of, how long it lasts, and how it is acquired, registered, transferred and enforced.

What Uses Of Material Can A Copyright Owner Control?

A copyright owner holds the following exclusive rights with copyrighted material:

Reproduction- i.e., by photographing, photocopying, writing, drawing, audio and/or video recording, or by other means;
Preparation of Derivative Materials- such as translations, musical arrangements, condensations, and abridgements and by varying, altering, adapting, or otherwise modifying copyrighted material;
Distribution - through selling, giving away, renting, loaning, or leasing;
Public Performance - reading, performing, presenting, broadcasting, or by other means; and
Public Display - showing it either directly or by means of photographs, film or videotape images, or by other means.

The right to do these things exists and is enforceable throughout the United States, its territories, and possessions, subject to certain exceptions. This right gives the owner the power to control how, when, and where copyrighted material is used; who can do these things; and the number of times they can be done. It applies to all mediums so that a copyright owner can control whether copyrighted material is reproduced in paper, clay, or plastic, or on disks, videotape, or film, or in two or three dimensions.

What Kind Of Material Can Be Copyrighted?

To be copyrightable, material must satisfy three requirements. It must be

original;
embodied in something tangible; and,
fall within one or more copyrightable material categories.

Categories of copyrightable material include:

Literary material - consists of words, numbers, or other verbal or numerical symbols, such as books, advertising copy, catalogs, software programs, poetry, scripts, speeches, personal and business letters, and databases;
Music, including any accompanying words - consists of varying melody, harmony, rhythm, and timbre with or without words, such as, vocal and instrumental songs, choral arrangements and orchestral music;
Dramatic material, including any accompanying music - consists of literary compositions that tell a story through action with dialogue, performed on stage by actors with or without accompanying music, such as, plays, operas, and melodramas;
Pantomimes and choreography - pantomimes consist of a drama presented by gestures and action without words; choreography consists of recorded or notated dance movements for performance before an audience;
Pictorial, graphic, and sculptural material - consists of two-dimensional and three dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical and architectural drawings, diagrams, and models;
Motion pictures and other audiovisual material - audiovisual material consists of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors; motion pictures consist of audiovisual material in the form of a series of related images which, when shown in succession, impart an impression of motion;
Sound recordings - consist of recorded musical, spoken, or other sounds (but not sounds accompanying a motion picture or other audiovisual material), such as, recorded musical performances, lectures, and synthesized sounds as well as those found in nature; and,
Architectural material created on and after December1, 1990 - consists of the overall form as well as the arrangements and composition of spaces and elements in the design of buildings, but not individual standard features.

A Copyright Does Not Protect Ideas And Certain Things

A copyright does not include the legal right to control use of the underlying idea for copyrighted material. A copyright owner has the right to control only use of the particular way in which an idea is expressed in copyrighted material. For example, the idea of drawing a fruit basket cannot be protected by a copyright, but a particular drawing containing these elements can be copyrighted. Other ways of representing the same idea do not infringe the copyright for that drawing.

In addition to ideas, copyright protection is not available for

procedures, methods, systems, processes, concepts, principles, discoveries, or devices
facts, basic plots, themes, and scenes that necessarily follow from certain plots
public domain material
material that lacks sufficient originality, such as book, motion picture, and song titles
product and business names
short phrases, catchwords, slogans and mottoes
typographic ornamentation or lettering
content and ingredient listings
blank forms designed for recording information
familiar symbols or designs
measuring and computing devices, like tape measures, rulers, and wheel dials
material consisting entirely of information that is common property, like standard calendars, sporting event schedules, height charts, and lists or tables taken from public documents or other common sources

How to Obtain a Copyright

A copyright is obtained simply by creating copyrightable material. Nothing more needs to be done. It comes into existence automatically on the date eligible material is created. Filing documents, paying fees, or obtaining a certificate of registration from the Copyright Office is not required.

The copyright owner of copyrightable material is the person who creates it. However, there are exceptions to this rule:

Work for Hire- if materials are created by an employee in the scope of his or her duties, the employer, not the employee, owns the copyright;
Commissioned work - a person who commissions another to create copyrightable material is the owner of the copyright in the material only if the creator signs a written agreement assigning the copyright.

Similarly, purchasing copyrighted material from another person does not include a transfer of copyright ownership for it if there is no written agreement saying the copyright is transferred for the material. The person who creates it keeps the copyright.
Jointly Owned Copyright. Persons who collaborate to create copyrightable material jointly own the copyright for it, even though they have not expressly agreed to this result. They automatically become copyright co-owners unless they agree otherwise and each has a right to use the copyrighted material without the need to obtain permission from the other owner(s).

What Is a Registered Copyright?

Copyright registration is a procedure used to record a copyright with the United States Copyright Office. This procedure involves filing an application for registration on a preprinted government-provided form, submitting copies of copyrighted material, and paying a filing fee.

Registration can occur any time during the life of copyright. However, there are advantages to registering a copyright soon after material is created. Although registration is not required to obtain a copyright, it is necessary for United States nationals as prerequisite to filing an infringement lawsuit.

What are the Benefits of Registering a Copyright?

If a copyright is registered before it is infringed, the copyright owner is entitled to be awarded attorneys' fees and can elect to receive statutory damages in cases where the infringer has made little or no profit from the infringement. These remedies are in addition to the right to an injunction. If registration is made after the infringement, the owner is not entitled to either of these remedies but can be granted injunctive relief.

What is a Copyright Notice?

A copyright notice consists of three elements for visual perceptible material:

the year in which a copy of the material is first publicly available by sale, gift, lease, rental, lending or offer to sell or distribute; and
the copyright owner's name.

A different version of this notice is used for sound recordings. It consists of the last two elements mentioned with an encircled letter "P" as the first element rather than &copy.

A copyright notice is not mandatory to protect a copyright for works first published after February 28, 1989. However, use of notice is still a good idea to combat an infringer's claim that the infringement was innocent (thus reducing damages) and to deter other potential infringers.

Can Copyrightable Material Be Protected in Foreign Countries?

Under certain conditions, many countries will give legal protection to copyrighted material owned by United States citizens. The United States has signed various copyright treaties with those countries including the Berne Convention for the Protection of Literary and Artistic Works (signed by more than 75 countries) and the Universal Copyright Convention (signed by more than 50 countries).

Is There a Way to Bar Importation of Infringing Material?

By registering a copyright and recording the registration with United States Customs, a copyright owner may be able to bar importation of infringing material. United States Customs will withhold delivery of any item it has reason to believe may infringe a registered and recorded copyright.

What Constitutes Copyright Infringement?

Subject to certain exceptions, unless permission is obtained from the copyright owner, everyone who produces copyrighted material or does anything with it that a copyright owner has the exclusive right to do (i.e., adapting, display, etc.), may be liable for infringement. The absence of an intent to infringe and ignorance of the law are not necessarily defenses to infringement.

FAIR USE DOCTRINE

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means for purposes such as criticism, comment, news reporting, teaching scholarship or research, is not an infringement of copyright. Some of the factors to be considered in determining whether a use is a "fair use" include:

the purpose and character of the use;
nature of the copyrighted work;
the amount and substantiability of the portion used;
the effect on the market for a value of the consignment work.

Steven B. Smith, Esq. is an Attorney from Colorado Springs, CO with Holme Roberts & Owen LLP.

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