Copyrights: A Primer

United States copyright laws protect an original work of authorship, so the creator has the legal right to control the release, use, and distribution of their creations. If you are unsure whether you need to copyright your material, it helps to understand the basics of copyrights. This primer has answers from our Maryland business attorney to frequently asked questions about copyrights.

What Is a Copyright?

A copyright refers to the exclusive legal right of a copyright owner to publish, reproduce, sell, or distribute copyrighted materials by the copyright owners. The copyright holder may or may not be the creator of the copyrighted work because copyrights can be transferred and/or sold.

Copyright law differs from other protections for intellectual property, such as trademarks, trade secrets, and patents.

What Are the Requirements to Establish a Copyright?

Copyrights are automatic. They exist from the moment the author creates the work. The Copyright Act of 1976 governs copyrights in the United States. Additionally, the Digital Millennium Copyright Act (DMCA) was passed in 1998 to amend the Copyright Act to address copyrights and the internet.

According to §102 of Title 17, copyright protection exists in “original works of authorship fixed in any tangible medium of expression.”

Works of authorship include:

●      Literary works

●      Architectural works

●      Musical works, including the words

●      Sound recordings

●      Graphic, pictorial, and sculptural works

●      Dramatic works, including the music

●      Movies and other audiovisual works

●      Choreographic works and pantomimes

However, copyright laws do not protect everything associated with a work of authorship. Copyright law states explicitly that copyright protection does not extend to illustrated, explained, or embodied things in the work:

●      Idea

●      Discovery

●      Procedure

●      Concept

●      System

●      Principle

●      Method of operation

●      Process

Registering a work with the U.S. Copyright Office is not required to create a copyright. You also do not need to make a work with a copyright notice. However, registering your copyright and using copyright notices enhances your copyright protection.

What Are the Requirements to Create a Copyright?

Copyrights protect the expression in a person’s work from being copied. There are three basic requirements you must meet to create a copyright in your creative works:

Requirement One: Work of Authorship

The list of material subject to copyright laws is extensive. For example, literary works include anything written, including emails and letters. Pictorial works can include sketches and photographs. Sound records include speeches made in public.

A work of authorship is independently created with some level of creativity. It can be published or unpublished.

Requirement Two: Original Work

A work of authorship must be original for copyright laws to attach. However, the level of creativity is not a measure of copyright protection. Trivial and trite works enjoy the same copyright protections as great literary works and priceless works of art.

As long as the work was not copied from earlier work and has minimal creativity, it can qualify for copyright protection.

Requirement Three: Fixed Tangible Medium of Expression

A work is “fixed” when it is in a tangible, permanent form. A tangible form is one that can be perceived, reproduced, or communicated for more than a short time. Examples of tangible forms include, but are not limited to, written documents, photographs, computer drives, memory cards, stone, and canvas.

However, “fixed” does not mean the work is in its final form. Drafts also enjoy copyright protection.

What Are the Benefits of Registering a Copyright?

Copyrights are registered with the U.S. Copyright Office. Registered copyrights are public records of copyright claims. The benefits of registering your copyright include:

●      You have the legal grounds to file a copyright infringement lawsuit (registration is required to file the lawsuit)

●      You can request that U.S. Customs block any goods from being imported into the country that infringes on your copyright protection

●      The legal presumption of the validity of the copyright if it was registered within five years of publication (the defense must provide evidence to rebut the presumption)

●      You can record security interests in copyrighted material

●      You can recover statutory damages and attorneys’ fees for an infringement claim that occurs after registration or within three months of publication

The benefits of registering a copyright far outweigh the time and cost of the registration process. Once you register your copyright, the duration of the copyright depends on several factors.

Generally, copyrights for works created after January 1, 1978, copyright protection is for the author's lifetime plus 70 years. However, some exceptions extend the copyright protection for some works.

Exclusive Rights Granted to Copyright Holders

The Copyright Act of 1976 provides copyright owners with several exclusive rights. Those rights include:

●      Multiple copying of copyright work to reproduce the work

●      Prepare derivative works – a creation based on the original work

●      Distribute copies in the public domain

●      Cause the work to be performed or displayed publicly

●      Sell copies of the copyrighted material or sell the original work

If a party uses copyrighted material in any of the above ways without permission from the copyright owner, the owner can sue the party for copyright infringement. However, there are several affirmative defenses to copyright infringement, including fair use and copyright misuse.

Fair use promotes the freedom of expression by allowing the use of copyrighted material in some cases. The courts consider several factors to determine the fair use of copyright material, including:

●      Purpose and character of the use

●      Nature of the work

●      Amount and substantiality of the use

●      Effect of the use on the market

The copyright owner can transfer any of their exclusive rights to another person through an express written assignment. The owner can also grant a license to use the material or work temporarily for specific purposes.

How Do I Register a Copyright?

Registering a copyright begins by filing an application with the U.S. Copyright Office. You must ensure the application is complete, including filing copies of your work, paying the filing fee, and attaching other required documents. You can file the copyright application online, which is faster and costs less.

The copyright process is relatively straightforward if you complete the paperwork correctly and submit the required copies of your work in the required format. Generally, there are just a few steps to register a copyright.

However, consult a copyright registration lawyer if you are unsure if your work meets the requirements for copyright protection. For example, domain names, ideas, names, work methods, titles, and slogans are not protected by copyright law, so they cannot be registered with the Copyright Office.

Furthermore, there could be questions regarding your ownership of works made for hire, works created by employees or independent contractors, and internet works. An attorney can review your work to determine whether it meets copyright requirements and assess your ownership of the copyright.

Contact Us to Schedule a Consultation with Our Maryland Business Attorney

Contact our law office if you would like more information about filing a copyright or protecting your copyright. Our Maryland business attorney assists clients in registering and protecting their original works.