COPYRIGHTS

Copyright protection is, perhaps, the weakest of the protections granted to intellectual property. A copyright protects an expression of an idea, but not the underlying idea. For example, a story about a boy and his dog can be copyrighted. However the copyright does not give the copyright owner any rights in dogs and boys. It also does not prohibit someone else from writing their own story about a boy and his dog.

A copyright does prohibit someone else from making a movie of the copyright owner’s story about a boy and his dog without the permission of the owner. Such a movie would be deemed to be a derivative work of the original copyrighted work. The copyright gives the owner control over all derivative works. Hence, you must “buy the movie rights” from the owner of the story.

Computer software can be both patented and copyrighted. Note that if someone can write their own separate software code that performs the same task as the copyrighted code, there would not be a copyright violation. There may, however, be an infringement of the patent, depending upon the scope of the coverage of the patent.

Mere listings of ingredients such as in recipes, formulas, compounds or prescriptions are not subject of copyright protection. However, where a recipe or formula is accompanied by substantial literary or artistic expression, for example literary effort in the form of directions, then the there may be a basis of copyright for the entire work. However, the recipe or formula itself remains in eligible for copyright protection.

Note also that short advertising expressions or catchphrases or slogans can not be copyrighted.

The term of a copyright depends upon the date of creation or first publication. For copyright purposes, publication occurs when the work is first made available on an unrestricted basis. Posting a work on the Internet would constitute publication due to the wide and unrestricted assess.

Prior to 1978 (the date of implementation of the 1976 Copyright Act amendments), the term of the copyright was for 28 years, with the option to renew the copyright for a single additional 28 year term. The renewal, however, was required to be made between the 27th and 28th year of the initial copyright term. For works created after 1978, the term of the copyright is the life of the author plus 70 years. However, if the work is deemed to be a “work for hire,” or is published anonymously or under a pseudonym, the term of the copyright is the earlier of 95 years from the date of publication or 120 years of the date of creation. A “work for hire” is a work made by an employee within the scope of his/her employment, i.e., as part of their job duties, or created by an independent contractor/author pursuant to a written contract specifying that the work is a work for hire.

A copyright is deemed to attach upon creation of the work, i.e., when the idea is placed in tangible form, i.e., written or filmed. Accordingly, the work no longer requires that it have the © symbol listed in the written form of the work. Placing this symbol, however, remains good practice.

There are also very strong reasons for continuing to file the copyright application with the Library of Congress. First, there is a presumption of ownership to the work and the owner is entitled to statutory damages plus possible attorney’s fees. The copyright registration must be filed within 3 months of publication or prior to the alleged infringement in order that this presumption can be created and the eligibility for statutory damages. It is possible to file the application after the infringement, but this registration will have the more limited benefit of allowing the copyright owner to sue in federal court.

Filing the copyright registration is a simple matter. It requires completion of a several page form and deposit of two examples of the work with the Library of Congress. Special rules for the depositing of computer code are in place to protect the proprietary secrets contained in the computer software code. Currently, the filing fee is $45.00.

The law recognizes that fair use of a copyrighted work does not constitute infringement. Fair use includes students copying copyrighted work for scholastic purposes or a teacher copying work for instructional purposes. Also copying or reproducing work for news reporting or as part of an editorial or critical commentary constitutes fair use. Fair use does require a determination of whether the use of was in conjunction with a non profit activity, the quantity or totality of the copyrighted work being copied, and whether the copying impairs the economic value of the work.

See the Copyright Office’s web site at www.loc.gov/copyright/.