Archive for May, 2020

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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