Archive for the ‘Copyright’ Category

An Example of Doctrine of Fair Use Overriding Classroom Guidelines

Tuesday, July 21st, 2020

The most recent posts have looked at the Doctrine of Fair Use and the educational guidelines incorporated into it. The original guidelines, known as the Classroom Guidelines, were factored into the Copyright Act of 1976, and allow educators to reproduce certain types of and portions of work to be used in a learning environment.

Although the Classroom Guidelines allow a certain amount of leniency within the Doctrine of Fair Use, the guidelines do not trump the requirements of fair use, nor do they overpower the rights of the original copyright holder.

The case below is an older, but strong example of the Doctrine of Fair Use overriding the Classroom Guidelines. Note, the courts may choose to follow the guidelines, but must ultimately rule in such a manner that favors the four criteria used to determine fair use set forth in §107 of the Copyright Act.

In the case, Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991), the defendant, Kinko’s Graphics Corp., decided to create its own set of low-cost course packets to sell to students by photocopying materials that were obtained from college professors. However, the for-profit copying service did so without the proper permissions and without paying the licensing fees that accompanied the material in the course reading lists. Here, the plaintiffs were a group of publishers who held copyrights for some of the material that was being used in the defendant’s course packets. Kinko’s claimed that its reproduction of the material was fair use, as the course packets were for educational purposes.

In this case, the court opted not to adopt the Classroom Guidelines as a legal standard and used evaluated each of the four fair use criteria individually, even though Kinko’s asserted fair use because of the educational nature of the packets.

For the first factor, which concentrates on the purpose and nature of the use, the court examined whether the material was being used in a commercial or non-commercial manner. It found that the use was commercial, as Kinko’s intended to profit from the work, and it was not used in a non-profit or educational nature. Moreover, the court also looked at the transformative nature of the work, and whether or not the defendant further developed the original work in some way. Again, it determined that the use was not transformative as the defendant simply photocopied the pre-existing material to create the course packets.

For the second factor, which concentrates on the nature of the copyrighted work, the court examined the originality and creativity of the original work being reproduced. The court found that this factor weighed in favor of fair use since the material that the defendant was reproducing was mainly factual. The reading lists being reproduced focused mainly on fields of study and did not meet the minimum level of creativity. However, if the original work had contained a unique or one-of-a-kind element this factor may not have weighed in favor of fair use.

For the third factor, which concentrates on the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the court examined whether the material being reproduced was essential to the original work. It found that Kinko’s was reproducing most essential portions of the main works. Because the defendant was recreating course packets for a lower cost, it had to reproduce the most important portions of the original works in order to give the students an effective discounted option. Therefore, the court found that this factor weighed against a finding of fair use, even though the defendant was not copying the works in their entirety, it was copying the most critical portions.

For the fourth factor, which concentrates on the effect of the use upon the potential market for or value of the copyrighted work, the court examined whether the reproduction of the copyrighted works would encroach on the original creators’ rights. In this case, the court found that the reproduction was indeed affecting the rights of the original creators, as students were purchasing the discounted course packets, made by Kinko’s, instead of the full-priced packets originally created. Since the reproduction was hindering the monetary sales generated from the original works, the court found that this factor weighed against a finding of fair use.

In conclusion, three of the four factors weighed against a finding of fair use and the court ruled in favor of the plaintiffs.

While it is important for copyrighted work to be shared for certain purposes, it is the job of the courts to ensure that an original copyright owner will not be hindered by the reproduction of the work, in a commercial or non-commercial setting. In this case, specifically, the three factors that weighed against a finding of fair use were far greater than the one that supported fair use. Simply because the defendant was selling its products to students, did not automatically make it an educational use. When looking at the bigger picture, the Guidelines were set forth for educators to expand the knowledge of their students without hindering the original creators of the works being used. In this case, educational material was being used in a for-profit manner which did hinder the original creators because their sales were being negatively impacted in the marketplace.

The TEACH Act

Friday, July 17th, 2020

As mentioned in the last post, this post will take a look at the TEACH Act, which is an extension of fair use in an educational setting. However, before further examining the Act, it is important to note that the Act is an extension of the Fair Use Classroom Guidelines.

The Classroom Guidelines were set forth in §107 of The Copyright Act of Oct. 19, 1976 and set the minimum standards of fair use for reproducing copyrighted material in non-profit educational institutions. These guidelines allow educators to copy certain portions and amounts of work for in-class use as an educational tool. Yet, as thorough as these guidelines were for in-class use, they did not account for online learning, which was not yet created. On Nov. 2, 2002, President Bush signed the TEACH Act into law. TEACH stands for Technology, Education and Copyright Harmonization, and furthers the Classroom Guidelines into online-learning environments.

Although the TEACH Act provides more freedom when using copyrighted work, there are still requirements that must be met in order for an educational institution to qualify for the exemptions provided under the Act. The main requirements are as follows: (1) The institution must be an accredited, non-profit educational institution. (2) Use of the copyrighted work must be for supervised educational activities. (3) The use must be limited to a set number of students enrolled in a specific course. (4) The use must be for real-time classes or pre-recorded sessions. (5) The use cannot include the transmission of textbook materials, which means one textbook cannot be bought and then copied for distribution. As an aside, the purpose of allowing digitization of work is not to harm the sale of copyrighted work, as that would be in violation of the Doctrine of Fair Use. (6) The institution must have clear and publicized copyright policies, which are to inform students that the work may be copyright, and all copyrighted online work must have a notice of copyright. (7) The institution must implement technological measures to ensure compliance with the policies above, and the measures must go further than password protection. Some measures may include user and location authentication through IP verification, print-disabling and cut-and-paste blocking. See 107th Congress H.R. 2100 Sect. 487

While the TEACH Act creates certain leniencies, its purpose is to allow remote students to have the same educational resources as in-person students. The Act does not supersede the Doctrine of Fair Use or any pre-existing digital licensing agreements.

Copyright and Fair Use

Monday, June 29th, 2020

Previous posts on the subject of copyright have discussed who the author of a work is, what is protected by copyright, what is not protected by copyright and the benefits of copyright notice.

This post will take a look at the Doctrine of Fair Use. This is a widely important section of copyright law because it helps to shield an original author of a work fixed in a tangible medium from copyright infringement.

According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” As stated in 17 USC §§107 – 120, the circumstances include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. It is, however, important to note that there are certain provisions in §106 and §106A that may preclude the Fair Use Doctrine.

When discussing fair use, §107 sets forth a set of four criteria that are to be evaluated when determining whether or not a certain use is fair or not. The four criteria are as follows:

  • Purpose and character of use: This factor considers whether the use is commercial versus non-commercial (such as nonprofit and/ or education purposes). When examining this first criterion, the court studies how the third party is using the copyrighted work. Often, the courts are more likely to find fair use if the work is being used in nonprofit, educational and other non-commercial settings. That being said, this does not automatically mean that fair use in one of these settings will automatically be found without first balancing the other three factors listed below. Moreover, when examining this factor, courts look at whether a work is being used in a “transformative” manner. When referring to “transformative” use, this means that the third-party user of the copyrighted work has added to or further developed the original work.
  • Nature of the copyrighted work: When looking at the nature of the copyrighted work, the courts assess the level of creativity or originality of the copyrighted work. This means that the more unique a work is, the less likely the courts are to find fair use. Therefore, courts may be less likely to find fair use for the unauthorized use of a one-of-a-kind novel, movie or book versus a technical manual or news article. As was explained in a previous post, certain things, such as instructions, may not be copyrighted, but the elements that make it unique may be. In this way, it is more likely for a court to find fair use for a work that is less unique.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider both the quantity of the work being used and the quality as well. On the surface, a court is less likely to find fair use if a large portion of the copyrighted material is used, versus a small portion. However, in some situations, a court may find fair use if a third-party uses the entire copyrighted text, but it may not find fair use of even the smallest portion of the section is determined to be the “heart” of the work. In short, this factor works to protect the essence of a copyrighted work.
  • Effect of the use upon the potential market for or value of the copyrighted work: The fourth and final criterion for determining fair use steps away from the work itself, and it looks outward into the marketplace. As explained in an early post, one of the benefits of copyright notice is that it acts as notice of ownership to the public. This means that if a work is unlawfully reproduced or copied, the original owner may claim copyright infringement. So, the courts use this factor to determine how the third-party user is using the copyrighted work, and if there is a chance that it may encroach upon the original author’s rights, such as monetary sales from the work. Aside from the effect on the marketplace in a monetary manner, the courts also must look at the safety of the widespread public. If there is a chance that the unauthorized use of the work could cause substantial harm to the public, the courts would be less likely to find fair use.

Though these are the four factors courts use to determine fair use, these criteria are not the only information used in every case. Because each case has a different set of facts, the courts must look at each case on a case-by-case basis. There is no set amount of work that determines fair use. This is also mentioned in the third factor of the test regarding the amount and substantiality of the work being used. The courts may find fair use of 100 hundred pages in one case but may not find fair use of one page in another. The intent of the Fair Use Doctrine is to protect the rights of the original author, while not restraining the public from learning or benefitting from a previously copyrighted work. A later post will delve into the TEACH Act, which is an extension of fair use in an educational setting.

Copyright Notice

Monday, June 22nd, 2020

On the topic of copyrights, many of the basics have been covered, including the benefits of copyright registration and the duration of copyright registration. However, this post will discuss copyright notice, which is distinct from copyright registration. While copyright registration validates an author’s claim to a work with the U.S. Copyright Office, a copyright notice validates an author’s claim to a work with the public.

The following will detail the elements of copyright notice, when it’s required and when it’s optional, the legal formalities that surround copyright notice and the advantages of including a notice on a work. Before delving too far into this post, it is important to note that for works created after March 1, 1989, copyright notice is optional, but for works created prior to that date, it is generally required.

Copyright notice is a statement put on copies of a work to inform the public that the author is claiming ownership. There are three elements to a notice, and they most often occur as a single continuous statement: (1) The copyright symbol ©; the word “copyright” or the abbreviation “copr.” (2) The year of first publication of the work and (3) The name of the copyright owner. The use of a copyright notice is the responsibility of the copyright owner and does not require permission from the Copyright Office, nor does it require registration.

For works published prior to March 1, 1989, the copyright owner was required to place an effective notice on all publicly distributed “visually perceptible” copies. Visually perceptible copies are those that can be seen or read, either directly or with the help of a machine, such as a film. For works published before the above date, the copyright notice had to be placed on copies in a permanent way that was legible to an ordinary user of the work and could not be concealed from view upon reasonable examination.

As described above, there are three general elements of a copyright notice and form a single continuous statement. However, for works that required copyright notice, it was acceptable to omit the year of publication for works reproduced on greeting cards, postcards, stationery, jewelry, dolls, toys or any “useful” article. Information regarding the specifics of elements of notice can be found in the Compendium on the Copyright Office’s website.

Copyright notice is optional for unpublished works, foreign works or works published on or after March 1, 1989. Although copyright notice is optional for these works, there are several advantages to using a copyright notice: notice makes potential users aware that copyright is claimed in the work; in the case of a published work, a notice may prevent a defendant in a copyright infringement action from attempting to limit his or her liability for damages or injunctive relief based on an “innocent infringement defense”; notice identifies the copyright owner at the work was first published for parties seeking permission to use the work; notice identifies the year of first publication, which may be used to determine the term of copyright protection in the case of an anonymous work, a pseudonymous work or a work made for hire; and notice may prevent the work from becoming an orphan work by identifying the copyright owner and specifying the term of the copyright.

In sum, although copyright notice is optional for works created after March 1, 1989, the notice has several advantages that can be extremely beneficial to an author in multiple circumstances. Notice does not need to be registered or approved with the Copyright Office. For works created prior to March 1, 1989, copyright notice is mandatory and there are several formats in which it can be used depending on practicality.

Works Made for Hire

Monday, June 15th, 2020

An earlier post discussing copyright ownership briefly went into the rights and authorship associated with a “work made for hire.” This type of authorship is the exception to general rules of copyright ownership, and the original creator is not the author of the work, nor is he the owner of the copyrighted work. Whether a work is made for hire is decided by the facts that exist during the time the work was created.

The post also discussed the two situations in which this type of copyright ownership may arise. In the first situation, a work may be made for hire when the work is created by an employee in the course of his or her regular duties. Second, a work may be made for hire when a third-party contributor and a hiring party enter into a written contract that clearly states that the work is to be considered a “work made for hire” and the work is commissioned or specially ordered for use as a compilation, a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, an instructional text, a test, answer material for a test or an atlas.  This post will take a closer look at each of the two situations.

The first situation deals with works made for hire within the scope of employment. In this situation, for an employee’s work to be considered a work made for hire, it must fall within the employee’s scope of employment.  However, the Copyright Act does not define the terms “employee,” “employer” or “scope of employment.” Instead, in Community for Creative Non-Violence v. Reed (1989), the U.S. Supreme Court stated that Congress meant for these terms “to be understood in light of agency law.” This is the law that reigns over employer-employee relationships, and when determining if a work was made for hire, the courts should rely on the general common law of agency and not on particular state laws, as their meanings for these terms may differ.

In accordance with this decision, the Copyright Office set forth a series of questions that may be pertinent to consider: What skill was required to create the work? Where was the work created, and did the hiring party provide space, material or tools to create the work? How long was the relationship between the parties, and did the hiring party have the right to assign other projects besides the one under review? Could the hiring party direct the creator on when and how long to work? How was the creator paid, and did the hiring party offer employee benefits? Did the hiring party remove taxes from the creator’s pay? Does the creator have his or her own business, and was the creator able to hire and pay assistants? Was the work created as part of the regular business hours of the hiring party, and was the work created pursuant to the creator’s usual tasks? And finally, was the work created during the creator’s authorized work time?

The second situation handles scenarios involving a third-party contributor and a hiring party. In such situations, a work is considered a work made for hire if it meets the following four criteria: (1) The work must fall within the nine categories of works listed above that are eligible to be specially ordered or commissioned as works made for hire. (2) There must be a written agreement between the party that ordered or commissioned the work and individual(s) who actually created the work. (3) In the written agreement, the parties must expressly agree that the work is to be considered a work made for hire. (4) The agreement must be signed by all parties. If the work in question fails to satisfy any of the above criteria, it is not considered a work made for hire.

Copyright in works made for hire is different than in other copyrighted works, where the creator of an original work fixed in a tangible medium is automatically granted copyright under U.S. law.

Starting with the authorship of the work, as mentioned earlier, the authorship of a work made for hire is granted to the employer or hiring party of the commissioned work. Much like the authorship, copyright ownership of a work made for hire is instilled in the party that commissioned or special-ordered the work in question. However, this may not always be the case if the hiring party has entered into and signed a written agreement with the work’s creator stating the contrary. As discussed in the previous post, the duration of copyright for works made for hire is 95 years from the date of publication, or 120 years from the date of creation, whichever is shorter.

When registering a work made for hire with the Copyright Office, it is not the Office’s job to decide whether a work was made for hire. That responsibility falls on the registrant, who must make that decision based on the facts that existed during the time the work was created. Though the Copyright Office cannot provide legal advice about the status of a work, a questionnaire was created to help registrants decide whether or not a work that was created under the Copyright Act of 1976 qualifies as a work made for hire. The questionnaire can be found on the Copyright Office website along with the Compendium of U.S. Copyright Office Practices, from which the questions were derived.

Works made for hire are an exception to the general copyright rules, and there are two instances in which a work may be considered a work made for hire, either an employer-employee situation or in instances in which a third-party employer commissions or specifically orders a work to be created. In either scenario, there are certain criteria that must be met in order for a work to be considered made for hire. It is important to make an accurate decision in determining whether a work is a work made for hire because there may be unintended consequences associated with such a work. When a work is given this status, it affects its authorship, copyright ownership, duration, registration and termination.

Copyright Duration

Tuesday, June 9th, 2020

As discussed in the last post, Copyright exists automatically in an original work of authorship as soon as it is fixed in a tangible medium.

Copyright refers to the six exclusive rights granted to the author of an original work, which are protected by U.S. law. However, again, as discussed, those rights can be enhanced and there are many benefits to registering a copyright with the U.S. Copyright Office. This post will discuss the duration of copyright registration, and the various amendments which have been made regarding a copyright’s duration, given the time of publication.

The first post covering copyrights briefly went through the duration of copyright protection for works created on or after Jan. 1, 1978, which encompasses all works registered under the current law, the Copyright Act of 1976. This post will take a closer look at how copyright registrations are affected given their registration date, and what amendments have been enacted since the current law took effect.

There are two separate Copyright Acts, the Act of 1909 and the Act of 1976. While the current law, the Act of 1976, retains the same system as the previous one, there are certain changes. This discussion will begin with the current Act for the sake of relevancy.

There are two separate categories for works that secured federal statutory protection on or after Jan. 1, 1978, which is the date that the current Act was amended. The first category is for works that were created on or after Jan. 1, 1978, and the second category is for works that were in existence but not published or copyrighted on Jan. 1, 1978. The amendment establishes a single copyright term and distinguishes different methods for calculating the duration of copyright. Starting with the first category, for a single author, the Act automatically protects a work that is created and fixed in a tangible medium of expression on or after Jan. 1, 1978, from the moment of creation through the author’s life, plus an additional 70 years. For a “joint work prepared by two or more authors who did not work for hire,” the protection lasts for 70 years after the last surviving author’s death. The duration of copyright protection for works made for hire, anonymous and pseudonymous is the same. The duration of the protection in all three cases is 95 years from first publication, or 120 years from creation, whichever length of time is shorter. However, if the author’s identity of an anonymous work is later revealed in Copyright Office records, the term of protection is the author’s life plus 70 years, similar to a single-author work.

The works in the secondary category, which pertains to those that were in existence but not published or copyrighted prior to the amendment, are intrinsically protected by federal copyright protection. For these works, the protection is calculated the same as for those in the first category. The difference is that works in this category are guaranteed at least 25 years of statutory protection. The law specifically states that “in no case would a copyright in a work in this category have expired before Dec. 31, 2002.” Moreover, if a work in this category was published before Dec. 31, 2002 term is extended another 45 years, or through the end of 2047.

Focusing now on the Copyright Act of 1909, the federal standards for copyright duration are very different than in the current Act because of the renewal term within the 1909 Act. During this Act, federal copyright protection began on the date that a work was published, or for unpublished works, on the date of registration. Unlike the current Act which guarantees protection for an author’s life plus 70 years, or 95 or 120, depending on the authorship, the earlier Act provided protection for a term of 28 years from the date it was first secured. During the final year of the term, the copyright was eligible for renewal. If renewed, it was extended for a second term of 28 years. If a copyright was not renewed, its federal copyright protection would expire during the first term, at the end of the 28th and final year.

For copyrights that were still in existence when the current Act came to be, the 1998 Copyright Term Extension Act increased the previous renewal term by 20 years. Therefore, protection for works secured during the Copyright Act of 1909 has been increased from 56 years, two terms of 28 years, to 95 years, which is a first-term plus a renewal term of 67 years. Therefore, when applying the standards set forth in the Extension Act, all works published in the U.S. before Jan. 1, 1923, are in the public domain.

In conclusion, under the current Copyright Act of 1976, all registered works created on or after Jan. 1, 1978, are protected for the duration of the author’s life plus 70 years, 95 years or 120 years depending on the authorship. Therefore, unlike the rules set forth in the previous Copyright Act of 1909, there is no need to renew a copyright term after 28 years. However, the current Act states that all terms of copyright will run the end of the calendar year in which they expire. For more information regarding the specifics of the amendments made to the 1909 Act, visit https://www.copyright.gov.

Benefits of Copyright Registration

Friday, May 29th, 2020

Copyright exists automatically in an original work of authorship as soon as it is fixed in a tangible medium. The copyright affords the author six exclusive rights that are protected by U.S. law. Although not mandatory, an author can enhance the protections of copyright by registering the work with the United States Copyright Office. Once a work is registered it establishes an author’s claim to copyright with the Copyright Office, which allows the author to defend and enforce the rights of the work through litigation. Notice of registration most commonly consists of the copyright symbol © or the word “Copyright,” along with the name of the copyright owner and the year of first publication. While placing a copyright notice on any original work is good practice, placing a copyright notice on a work does not substitute for registration.

An application for registration can be filed by the author or owner of an exclusive right in a work, the owner of all the exclusive rights or an agent on the author or owner’s behalf. (see this post for copyright ownership) There are three essential parts to a registration application: a completed application, a nonrefundable filing fee and a nonreturnable deposit. The deposit is a copy, or copies, of the work being registered and “deposited” with the Copyright Office.

The certificate of registration is important because it creates a public record containing all of the critical information relating to the original work and the author or owner. The information that becomes public record includes the title of the work, the author of the work, the name and address of the claimant or copyright owner, the year of creation and other information regarding the status of the work, such as whether it’s been published, has been previously registered or includes preexisting material. Since registration is not mandatory, it can be done at any time within the life of the copyright. (see this post for the lifespan of copyright)  There are certain benefits to timely filing a copyright application addressed in benefit three below.

Aside from establishing a public record of a copyright claim, registration has multiple advantages. Following, are four of the most critical statutory benefits as stated by the Copyright Office. First, before an infringement suit can be filed in court, the work must be registered with the Copyright Office. Second, registration establishes prima facie evidence of the validity of the copyright and the facts stated in the certificate when registration is made before or within five years of publication. Third, when a registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorneys’ fees and other related costs. Lastly, registration allows a copyright owner to establish a record with the U.S. Customs and Border Protection for protection against the importation of infringing copies.

The effective date of registration to the certificate of registration is the day the Copyright Office receives a completed registration application. If the registration does not contain all of the required elements, as mentioned above, the date will not be set until the Copyright Office is in possession of those elements. Though there is no deadline for this, copyright registration (or refusal) from the Copyright Office is necessary prior to filing a lawsuit for copyright infringement. An applicant may seek statutory damages and attorneys’ fees in an infringement suit if the action began after the effective date of registration. Though collection can only take place after the effective date of registration, the law provides a three-month grace period after publication wherein full remedies may be recovered for any infringement action that began during those three months after publication if registration is made before the period ends.

Although registration is not mandatory since copyright is instilled in a work as soon as it is fixed in a tangible medium, registration (indeed timely registration) has many benefits.

What is Not Protected by Copyright

Wednesday, May 27th, 2020

Copyright protection is granted to authors of original works that are fixed in a tangible medium and the protection is automatically granted to an author upon creation of the work. This protection affords the author six exclusive rights to protect his work. Work that can by copyrighted includes literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings, which are works that result from the fixation of a series of musical, spoken or other sounds and architectural works.

For work to be copyrightable, not only does it need to original, but it must meet a certain minimum level of creativity. While as seen above most works meet these criteria, some works may not meet the necessary level of creativity or are not within the scope of copyright as defined by the law. This post will cover five areas of work that are not copyrightable.  These areas include ideas, methods and systems; names, titles and short phrases; typeface, fonts and lettering; blank forms and familiar symbols and designs.

When it comes to ideas, methods and systems the U.S. Copyright Office states, “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied.” However, a literary, graphic or artistic description, explanation or illustration of an idea, procedure, process, system or method of operation may be copyrightable so long as it is original and meets the required level of creativity. It is important to understand that only the original expression in the work is copyrightable, not the underlying ideas, methods or systems being detailed.

An example of an uncopyrightable procedure is a recipe. In its most basic form, a recipe is simply a list of ingredients and a set of directions and neither the list nor the directions may be copyrighted. However, a recipe that is creatively written or uses artistic concepts to depict the procedure may be copyrightable. An example is cooking directions written in poetic verse.   The creativity of the poetry would be protectable but there would be no protection for the steps of preparation.   In this case, the portion that is protected is the creative explanation, along with any illustrations or pictures owned by the author. The list of ingredients, bare-bones directions and final products are still not subject to copyright protection.

Names, titles and short phrases are not copyrightable because they do not meet the minimum requirement of original authorship. In this instance, this is where the last series of posts come into play. Individual words and short word combinations may not be copyrighted, even if the word or phrase is novel, distinctive or creates a double meaning. However, these terms may be trademarked if they meet the trademark criteria set forth by the USPTO. According to the Copyright Office, some examples of names, titles or short phrases that are not copyrightable include the name of an individual (including pseudonyms, pen names or stage names), the title or subtitle of a work, such as a book, song or a pictorial, graphic or sculptural work, the name of a business or organization, the name of a band or performing group, the name of a product or service, a domain name or URL, the name of a character, catchwords or phrases and mottos, slogans or other short expressions. If the title of a book is actually the name of a series of books and the name indicates the source of those books, the title can be protected by trademark law even though the title is not subject to copyright.

Copyright law does not protect typeface, fonts and lettering. Typeface refers to a set of letters, numbers or other characters with repetitive design elements that are intended to be used in creating text or other compilations of characters including calligraphy. Since typeface, fonts and lettering are commonly used to create original works of authorship, the Office cannot provide protection to an author trying to establish ownership of any type of lettering, whether it is common or unique. If in a slim set of circumstances, the work may be copyrightable, if the author is able to describe the original aspects of the work and explain how the original work is distinguishable from the typeface characters. Similar to the recipe example above, the decoration or ornamentation may be protectable, but not the underlying material.  Think of an illuminated manuscript.

Similar to typeface, fonts or lettering, layout and design are not copyrightable, because the general layout or format of a book, page, book cover, slide presentation, web page, poster or form is the template for expression, much like how typeface is the basis of expression.

Blank forms, such as timecards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms, datebooks and planners may not be copyrighted. The aforementioned blank forms are not copyrightable because they are designed to record information and do not convey any information in and of themselves. By contrast, any blank form that incorporates design or creativity that is not standard or functional and meets the minimum level of creativity and original authorship may be copyrighted. However, a blank form itself will never be afforded protection, only the unique portions may be protected.

Lastly, familiar symbols and designs, or a combination thereof are uncopyrightable and may not be registered with the Office. However, if an author incorporates familiar symbols or designs into a larger original work, the work as a whole may be registered if there is a sufficient amount of creative expression. Examples of familiar symbols and designs include, but are not limited to keyboard characters, abbreviations, musical notations, numerals, currency and mathematical symbols, arrows and other coordinate or navigational symbols, common symbols and shapes including playing card characters and the yin yang, common patterns, well-known and commonly used symbols that contain a minimal amount of expression or are in the public domain, including peace symbols, gender symbols or basic emoticons, industry designs such as hazard symbols and familiar religious symbols.

Though the five areas described are not copyrightable, there are certain exceptions in cases that meet the minimum original authorship and creativity requirements. In these cases, when attempting to submit a registration claim, it is imperative to focus on what in the work is copyrightable such as the text, illustrations or drawings. Any work that is simply a template or basis for works of original authorship may never be registered with the U.S. Copyright Office.

Copyright Ownership

Wednesday, May 27th, 2020

The previous post explained that copyright is a type of protection that entitles authors of “original works of authorship” that are fixed in a tangible medium to six exclusive rights.

This post will discuss copyright ownership.  In most cases, the author is the person who created the copyrightable work and puts it in a tangible medium. However, two separate scenarios can occur as well.

In some instances, two or more authors may collectively create an original work, and assuming the intent is to merge the separate contributions into an indivisible and interdependent whole, the authors of the united work become co-owners of the copyright unless otherwise expressed. However, if multiple authors contribute to a collective work, that does not come to form a unitary whole, such as an anthology, each author’s individual contribution is distinct from the copyright ownership of the collective work as a whole. Simply put, in such an instance, each author is granted copyright ownership of his individual work, whereas the authors of a united and indivisible whole co-own the entire work.

In another scenario, “works made for hire,” are an imperative exception to the general rule of copyright ownership. In this case, the original creator is not the author of the work, nor is he the owner of the copyrighted work. Whether a work is made for hire is decided by the facts that exist during the time the work was created.

There are two situations in which a work may be made for hire. First, a work may be made for hire when the work is created by an employee in the course of his or her regular duties. Second, a work may be made for hire when a third-party contributor and a hiring party enter into a written contract that clearly states that the work is to be considered a “work made for hire” and the work is commissioned or specially ordered for use as a compilation, a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, an instructional text, a test, answer material for a test or an atlas.  Of significance is that an independent contractor, hired for a specially ordered work that is not one of the enumerated types of works, will own the copyright despite a written agreement.  In such cases, the commissioning party must obtain an assignment.

In either work for hire situation, the hiring party that paid for the created work, and agreed to take all the financial risks associated with it, is the owner of the copyright and is entitled to the six exclusive rights that are a product of the ownership. Though these are the situations that may determine a work made for hire, the concept as an entirety can be more complicated and may result in unintended consequences for both parties. A later post will look more closely at the topic and detail the different risks associated with this type of ownership.

In conclusion, generally, the author of an original work fixed in a tangible medium is the copyright owner and entitled to the six exclusive rights that are fixed into ownership. However, a copyright may be co-owned, pieces of a whole, but collective work, may all be separately owned or a work may be created for hire. In any case, there should always be a contractual agreement between all involved parties.

What is a Copyright

Wednesday, May 27th, 2020

The last series of posts served as an in-depth look at trademarks. This next segment of posts will delve into copyrights; starting with what is a copyright.

A copyright is a type of protection granted to authors of “original works of authorship” that are fixed in a tangible medium. An “original work of authorship” is simply an original creation by a human author and possesses at least a minimal degree of creativity. The phrase, “fixed in a tangible medium,” means that the original work of art is captured in a sufficiently permanent medium. A sufficiently permanent medium is any work that can be perceived, reproduced or communicated for more than a small amount of time.

A copyright gives the owner of any copyrighted original work six exclusive rights: the right to reproduce and make copies of an original work; the right to prepare derivative works based on the original work; the right to distribute copies to the public by sale or another form of transfer, including rental and lending; the right to publicly perform the work; the right to publicly display the work; and the right to perform sound recordings publicly through digital audio transmission.

Copyright protection also provides the owner of the copyrighted work the right to authorize others to exercise these rights, subject to certain limitations. The two most common forms of transferring rights are license and assignment. If the transfer is exclusive, it must be in the form of a written agreement that is signed by the copyright owner. If it is a nonexclusive transfer, it does not need to be a written agreement. If any of the six exclusive rights are infringed upon, the owner may bring on a copyright infringement lawsuit to enforce the rights of ownership.

When it comes to what counts as an original work, the categories are not narrowly defined and should be viewed broadly for registration purposes. Examples of copyrightable works include literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings, which are works that result from the fixation of a series of musical, spoken or other sounds and architectural works.

Copyright protection, like any other form of protection, has a life span. In general, works created on or after Jan. 1, 1978 are protected for the life of the author plus 70 years after death. If the work a collective effort with multiple authors, it is protected for life plus 70 years after the last surviving author’s passing. For “works made for hire,” the work is protected for 95 years from the date of publication, or 120 years from the time it was created, whichever is shorter.

Though copyright automatically exists in an original work once it is fixed in a tangible medium, a copyright owner can enhance the works’ protection further than the six rights above. The most important step is registering the work with the U.S. Copyright Office. A later post will detail the benefits of copyright registration, and another will delve more deeply into the duration of a copyright and how to renew one.

 

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