HOWARD M. COHN

PATENT ATTORNEY
21625 CHAGRIN BLVD.  SUITE 220
CLEVELAND, OHIO 44122

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Copyright Basics

What Is A Copyright

A copyright is a form of protection provided by the government of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Copyright protection is available for all unpublished works, regardless of the nationality or residence of the author.  Copyright protects the author’s original expression as contained in the work but does not usually extend to any idea, procedure, process, method, system, discovery, name or title.

A copyright is the exclusive, legally secured right to reproduce (as by writing or printing), publish, and sell the matter and form of a literary, musical, or artistic work (as by dramatizing, novelizing, performing or reciting in public, or filming) for a period in the U.S. of up to 95 years.  The owner of copyright has the exclusive right to do and to authorize others to do the following by the Copyright Office of the Library of Congress:

• Reproduce copies of the original work;
• Prepare derivative works or “spin-offs” that are based on the original;
• Distribute copies of the work, by sale, transfer, licensing or lending;
• Publicly perform or display the copyrighted work; and
• Prevent the intentional modification, distortion or mutilation of any work of the visual arts that would harm the artist’s reputation or honor and to prevent the destruction of a well-recognized and protected work.

A copyright does not protect the idea or concept; it only protects the way in which an author has expressed an idea or concept.

What Does A Copyright Protect
Literary works, Visual Arts, Performing Arts, Sound Recoding, and Serials can be protected with a copyright.

• Literary works normally includes: fiction, non-fiction, poetry, prose, textbooks, cookbooks, catalogs, ad copy, speeches, software codes and computer programs.
• Visual Arts includes paintings, drawings, photographs, sculpture, maps, graphic designs, art reproductions, cartoons, unique package design, technical drawings, architectural works and web site designs.
• Performing Arts includes musical compositions, dramatic works, scripts, choreography, motion pictures, and other multimedia or audiovisual works.
• Sound Recording protection should be used to protect published and unpublished recordings of musical, dramatic, or literary works to protect the sound recording itself, in addition to any copyright in the underlying work.
• Serials are literary works published in a series of installments, such as magazines, newspapers, bulletins, journals and digests.

How To Obtain Copyright Protection

Copyright protection arises automatically when an "original" (owing its origin to the author) work of authorship is "fixed" (sufficiently permanent to permit it to be perceived, reproduced, or otherwise communicated) in a tangible medium of expression.  Registration with the Copyright Office is optional (but you have to register before you file an infringement suit, and most importantly, registering early will make you eligible to receive attorney's fees and statutory damages in a future lawsuit).

What Is The Scope Of Protection

Copyright protects against "copying" the "expression" in a work as opposed to the idea of the work. The difference between "idea" and "expression" is one of the most difficult concepts in copyright law.  The most important point to understand is that the protection of the "expression" is not limited to exact copying but can extend to new works which are "substantially similar".

A copyright owner has the following exclusive rights in the copyrighted work.

• The right to copy, duplicate, transcribe, or imitate the work in a fixed form.
• The right to modify the work to create a new work.  A new work that is based on a preexisting work is known as a "derivative work."
• The right to distribute copies of the work to the public by sale, rental, lease, or lending.
• The right to recite, play, dance, act, or show the work at public place or to transmit it to the public. 
• The right to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public.

One who violates any of the exclusive rights of a copyright owner is an infringer. A copyright owner can recover actual or, in some cases, statutory damages from an infringer.  Further, courts have the power to issue injunctions to prevent copyright infringement and to order the impoundment and destruction of infringing copies.

What Is The Term Of Copyright Protection  

Three factors determine the term of copyright protection.

• Who created the work.
• When the work was created.
• When the work was first commercially distributed.

The copyright term for works created by individuals is the life of the author plus 50 years (for works created after January 1, 1978).  For "works made for hire", the copyright term is 75 years from the date of first "publication" (distribution of copies to the general public) or 100 years from the date of creation, whichever expires first.

Who Owns The Copyright

Generally, the copyright is owned by the person (or persons) who create the work. However, if the work is created by employee within the scope of his or her employment, the employer owns the copyright because it is a "work for hire." The copyright law also includes another form of "work for hire": it applies only to certain types of works which are specially commissioned works.  In order to qualify the work as a "specially commissioned" work for hire, the creator must sign a written agreement stating that it is a "work for hire" prior to commencing development of the product.

If you have any questions, do not hesitate to contact me.

Sincerely,