COPYRIGHT SERVICES

A copyright is a federally granted exploitation right in any original work of authorship (right to reproduce, adapt, distribute). The Copyright Act provides that “Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 USC § 102(a).

1. Work of Authorship. These must be original, i.e., not copied (though derivative works are based on preexisting works).
2. Minimum Creativity. Works must contain a minimal amount of creativity (some argue that this element is biased against certain artworks of modern art, i.e., minimalist works that include an all-white canvas and an all-black canvas).
3. Examples of Works of Authorship. Works of authorship include literary works (including computer programs); 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; and architectural works.
4. Fixation. A work of authorship is considered fixed when it is stored on some medium in which it can be perceived, reproduced, or otherwise communicated. Examples include writing a poem on paper with a pen, or on a computer; a painting; a sketch; or a photograph.
5. Protection Arises Upon Fixation. Copyright protection automatically arises upon fixation – no formalities are required. However, copyright registration still has value, as discussed below.
6. Copyright Law Only Protects the Tangible Fixation of the Expression. In no case does copyright protection for an original work of authorship extend to 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 in such work. 17 USC §102(b).

Copyright ownership provides the owner the right to Reproduce the work; Prepare derivative works¹ based on the original; Distribute copies by sale or other transfer, including rental or lending; perform the work publicly; and/or display the work publicly. Ownership of the copyright does not mean ownership of the specific item embodying the copyright. (i.e., ownership of a painting does not give the owner rights in the copyright of such painting).

There are certain creations that categorically are not copyrightable. For example:

1. Factual data; Historical Facts. It does not matter how difficult it is to amass factual data; such data is not, in and of itself, copyrightable. In Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991), the court found that the collection of a list of all telephone subscribers along with their name, address and phone number and arranging this information in alphabetical order does not satisfy the minimal creativity requirement of copyright law (though, a phone book comprised of entries selected for a particular purpose may be copyrightable as a compilation²). Similarly, if you made a breakthrough scientific discovery and drafted your results in a paper, the specific manner in which you described your discovery would be protected, but the discovery itself would not be protected.
2. Song and Book Titles.
3. Slogans.
4. Useful/Utilitarian Items. Items such as tables and chairs are not protected; however, associated artwork deemed separable is protectable. In Mazer v. Stein, 347 U.S. 201 (1954), the court found that a statute of a Balinese dancer affixed to a lamp base was separable (and thus protectable).
5. Lists of Ingredients/Recipes. These are not protectable; however, collections of recipes are protectable as a compilation.
6. Works Not Fixed. Examples include improvisational work that is not recorded.
7. Slavish Copies. However, this is a narrow exception given low creativity bar.

Where two or more collaborators to a project each contribute copyrightable expression to the final work, and all have the intention, at the time each collaborator makes his/her contribution, that the separate contributions be absorbed into an inseparable [painting/novel] or interdependent [words/music, opera] parts of a unitary whole. All joint owners share equally in ownership without regard to the amount contributed by each joint owner, which each owner having an undivided interest in the whole.

While written notice is no longer required for the establishment of copyright protection; it is still recommended, as it serves to put would-be infringers on notice of a party’s rights. Notice usually takes the form of “© 2008 by WSP”. A more advanced copyright notice would be: “© 2008 by WSP. All Rights Reserved. This material may not be reproduced or transmitted in whole or in part in any form or by any means, electronic or mechanical, without prior written permission from WSP. Requests for permission to reproduce this material or a portion thereof should be forwarded to: WSP [INSERT CONTACT INFO]”.

Copyright registration is no longer required for copyright protection. However, it provides important benefits, including: (a) providing the copyright holder with documented evidence of the creation of the underlying work; (b) securing a copyright registration is necessary before the commencement of a copyright infringement action; (c) registration provides the copyright holder with access to statutory damages and attorney’s fees (the registration must have occurred prior to the infringement at issue); (d) a copyright registration can be filed with Customs to stop the importation of infringing articles; and (e) it is easy and relatively inexpensive to register a copyright.

Copyright duration laws have undergone many changes over the years; this is part of the reason that there is no one answer to the question “what is the copyright protection for a given work”. The 1976 Copyright Act, which is the current law applicable for works created on or after 1/1/1978, establishes the following copyright terms:

1. Solo Works. Copyright lasts the life of the author plus 70 years.
2. Joint Works. Copyright lasts the life of last surviving author plus 70 years.
3. Works Made For Hire, Anonymous Works, Pseudonymous Works. Copyright lasts until the first to occur of 95 years from publication or 120 years from creation.

Copyright infringement is defined as the copying of the protected expression from a work that results in a work that bears a substantial similarity to the copied work. Copying the idea of a work (“Greek key” border, Last Supper mural) is not infringement. Copyright infringement is established through proof of copying and substantial similarity. Copying may be proved by showing that the alleged copier had access to the work at issue. Independent creation is a complete defense of copyright infringement, even if the end result is identical to a prior work. Copyright infringement is judged from the view of the ordinary observer viewing the works side by side.

1. Ignorance of Copyright Law No Excuse. Infringement is infringement whether or not you intended it to occur.
2. Old works may still be protected. Do not assume that just because the work your client wants you to copy is old that it has no copyright protection – works published in the 1920’s may still be under copyright protection. And unpublished works created in the 19th century may still be under copyright protection.
3. Difficulty in Verifying Creation/Publication Dates of a Work No Excuse. Do not assume that just because you cannot verify when a work was created and/or published, it has no copyright protection (orphan works).
4. Ideas Are Not Copyrightable. The fact that ideas are not copyrightable can hinder you in trying to protect certain creations where such creations are not easily reduced to a tangible medium (color scheme, room layout, etc.). This rule is beneficial where you are creating works for a client. While you may not be able to reproduce a specific copyrighted work of art on your client’s wall, you can produce a work using the same concept (i.e., same brush technique, same subject matter, same color scheme).
5. Infringement Not Dependent On Profits. Do not assume that just because you are not making money from selling an infringing work that you are not infringing – it is not uncommon for people to mistakenly believe that as long as they are not making money from their infringement, it is an acceptable use.

Fair use is a defense (not an offensive tool) to a charge of copyright infringement that excuses certain types of work usage that would otherwise be deemed infringing. As such, fair use is only applicable where the use in question is infringing. Examples of fair use purposes include criticism, comment (including parody), news reporting, teaching (including multiple copies for classroom use), scholarship, research or parody. The fair use defense has four factors, each of which is considered by courts in a balancing test:

1. The purpose and character of the accused use (commercial vs. noncommercial – noncommercial use is more likely to be found fair use; and transformative vs. non-transformative, with transformative more likely to be found fair use);
2. The nature of the copyrighted work (published or unpublished, factual or creative, with fair use more likely to be found for factual works);
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (usually, the less taken, the more likely to be fair use, but see Harper & Row, Publishers, Inc. v. National Enterprises, 471 U.S. 539 (U.S. 1985) (finding that the portion reproduced, even though small relative to the entire work, contained the “heart” of the work & thus was not fair use)); and
4. The effect of the accused use on the potential market for or value of the copyrighted work (i.e., whether or not your use competes with the author’s use – the more transformative, the more likely to be found fair use).

The merger doctrine holds that in cases where an idea and the expression of that idea are inseparable, the work is not copyrightable.⁵ The intent is that in situations where an idea can only be expressed in one way, granting copyright protection for the work would grant a monopoly on the idea. An example would be the rules of a game. Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967).