A working knowledge of copyrights is invaluable to any person or business that desires to protect and profit from their “creations.” Especially in this “digital age” where everything is reproduceable with the click of a mouse, copyright registrations are essential. Mirowski & Associates provides: (1) Federal copyright registration services, (2) Contracts and Licensing and (3) Advice about protecting copyrights and intellectual property from infringement. Here are some basics:
- COPYRIGHT BACKGROUND
- WHAT IS A COPYRIGHT?
- WHAT IS NOT PROTECTED BY COPYRIGHT
- THE “POOR MAN’S COPYRIGHT” MYTH
- THE BENEFITS OF COPYRIGHT REGISTRATION
- HELPFUL LINKS
A tension exists in the law between protecting the creator of something new and the need to allow others to build upon the past. As Justice Story explained in 1845, “[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which is well known and used before.” Emerson v. Davies 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845). Therefore, as Lord Ellenborough noted, “while I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science.” Carey v. Kearsley 4 Esp. 168, 170, 170 Eng. Rep. 679, 681 (K.B. 1803).
Over two hundred years later, the issue is anything but settled. The “digital age” has ushered in a new world of copying and infringement. Anyone with a computer can make an indistinguishable copy of music, art and even full computer programs with the click of a mouse. An unscrupulous competitor can benefit unfairly by avoiding the high cost of research and development that led to the creation of an original work. The rules have changed but the quandary is the same. A party who invests time, money and assets in producing innovations and content, which will benefit society, should be allowed to receive benefits from their investment and creativity. On the other hand, society benefits from the dissemination and exchange of ideas. Such free flow of new ideas and technology creates a synergy, which results in increased innovation and improvement of technology. Too much freedom is as bad as too much control. They both end up limiting progress. The answer to this quandary is still – to be seen.
Copyrights are the rights an author has to protect and exploit an original work the author has created. 17 USC § 106 provides for what is often referred to as a “bundle of rights” to the author of a “work of expression” including the right to:
- Reproduce or copy the work or authorize another to reproduce the work.
- Control distribution and dissemination of copies of the work to the public by sale, rental lease or other transfer of ownership.
- Display or publicly perform the work.
- Make derivative works or adaptations based thereon.
Violation of the copyright owner’s exclusive rights constitutes “infringement,” for which the owner may obtain legal and equitable relief. 17 USC § 501 et. seq.
The Copyright Act [17 USC 102 (a); 106] lists the following criteria for what may be the subject matter of a copyright:
- The work must be an “original;”
- The work must be a “work of authorship;”
- The work must be “fixed in a tangible medium of expression from which it can be perceived, reproduced or otherwise communicated . . . .” The work may be communicated with the aid of a machine or a device.
There are a number of limitations as to what is protected by copyright law. In particular, Federal Copyright law does not extend to protection to:
- Ideas, procedures, systems, processes, methods of operation, concepts; mathematical or other principles; formulas or algorithms; scientific or technical methods; discoveries or devices, regardless of the form in which it is described, explained, illustrated or embodied.
- Titles, names, short phrases, slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, coloring, mere listing of ingredients or contents.
- Works consisting entirely of information that is common property and containing no original authorship. (For example, standard calendars, height and weight charts, tape measures and rulers, lists or tables taken from public documents or other common sources and works within the public domain.) See 17 USC § 102 (b); 17 USC 106.
It is important to understand that copyright law does not protect “ideas,” it only protects the expression of those ideas. It is in society’s best interest to have ideas freely transferable, communicated and used. Therefore an “idea” in and of itself, is not regarded as property. All sentient beings may conceive and evolve ideas throughout the gamut of their powers of cerebration and the concept of property implies something which may be owned and possessed to the exclusion of all other persons. Desny v. Wilder (1956) 46 Cal. 2d 715. “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . .” Feist Publications, Inc. v. Rural Telephone Services Co.(1991) 499 U.S. 340, 359; 111 S. Ct. 1282.
Furthermore, although an item may be copyrightable, it is not an infringement to use it if it is a “Fair Use” such as (1) Criticism (2) Comment (3) News Reporting (4) Teaching (5) Scholarship (6) Research [See 17 U.S.C. § 107] or has fallen into the “Public Domain.” Typically, a work enters the public domain: (a) After the copyright has expired (b) A Pre-March 1, 1989 work that lost its protection due to being published without a proper copyright notice (which was not corrected within five years) (c) The work is deliberately released to the public or (d) The work was prepared for the U.S. Government.
Actual copyrights come into existence at the moment a work of expression is created. Mailing a creative work to yourself (sometimes called a “poor man’s copyright”) does not actually provide the owner with copyright protection. As long as the envelope is not opened, such actions merely establish a date the work was in existence. On the other hand, Federal “Registration” of a work provides the registered owner with numerous rights and remedies for the protection of the work. Given the relative small cost of registration for most works, the “poor man’s copyright” is a foolish waste of postage.
Copyright registration is not a condition of copyright protection. Yet, the law provides several advantages and inducements for registration. These include:
- Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in Federal Court, registration is necessary for works of U.S. origin and foreign works not originating in a “Berne” country.
- If registration is made within five years of publication, registration will establish “prima facie” evidence in court of the validity of the copyright and the facts stated in the certificate.
- If registration is made within three months of the first publication of the work or prior to infringement of the work, statutory damages and attorney fees are available to the owner. Additionally, criminal sanctions may be available. Without registration, the owner is only entitled to actual damages and wrongful profits.
- Copyright registration allows the owner to record the registration with the U.S. Customs Service for seizure of infringing copies being imported into the U.S.
One of the major advantages of registering one’s work with the Copyright Office is that it makes available additional remedies against an infringer. A successful plaintiff with a registered copyright may recover:
- ACTUAL DAMAGES defined as those damages, which the party can prove, were the legal and proximate result of the infringer’s actions.
- PROFITS: As an alternate measure of damages, the plaintiff may recover the profits made from the infringing work for a willful infringement.
- INJUNCTION: See 17 USC § 502.
- STATUTORY DAMAGES: With respect to any one work, anytime before final judgment, the copyright owner may elect to recover (instead of “actual damages”) statutory damages of at least $750 and up to $30,000. If the Court finds that the infringement was “willful,” the Court may award up to $150,000. 17 USC 504 (c).
- ATTORNEY’S FEES AND COURT COSTS: 17 U.S.C. § 505 provides that “[i]n any civil action under this title… the court may…award a reasonable attorney’s fee to the prevailing party….”
When a dispute ends up in a court, the attorney fee issue will be extremely important.