|
COPYRIGHT PROTECTION
Copyright. Generally, a copyright is a form of
legal protection provided to an author of an original work (written,
pictorial, graphic, sculptural, pantomimes, musical, architectural,
etc). A copyright protects the expression: A copyright does not protect ideas, procedures, processes, systems, forms, methods of operation, concepts or principles. See below for additional discussion.
All works under copyright protection that are published in the United States are subject to the mandatory deposit provision of the copyright law (17 U.S.C. section 407). This law requires that two copies of the best edition of every copyrightable work published in the United States be sent to the Copyright Office within 3 months of publication. If it is an unpublished work, then an author can submit it via an electronic copy (e.g., a pdf document).
Mandatory deposit is not the same as registration. Section 408 of the copyright law, for a fee, provides the option to formally register the work with the U.S. Copyright Office. This registration process provides a legal record of copyright ownership as well as additional legal benefits in cases of infringement. However, optional registration fulfills mandatory deposit requirements.
Literal copying of a work is considered a copyright
infringement. A copyright protects the expression of an original
work of authorship. A fixed cost of $400-$600 is the usual cost involved
in preparing a federal application, responding to any action from the
Copyright office and delivering your registration certificate. This
includes attorney fees plus filing costs ($65, effective 20-MAR-2020) plus
miscellaneous mailing and handling costs of ~$10. Unusual, out of pocket
costs are extra.
What Copyright Does Not Protect. A copyright
does not protect the idea, procedure, process, system, method of
operation, concept, principle, or discovery that may be described, which
are protectable in a utility patent.
For example, copyright protection does not protect a work from
reverse-engineering by competitors. Software is a good
example. Copyright infringement will not exist when
reverse-engineering does not result in literal copying of the original
code, but merely an understanding of the underlying ideas and
functions. For software
and other works, a utility patent
should be sought to provide the greatest protection against reverse
engineering. The copyright office, Circular 1, provides a good summary of Copyright basics.
A design patent
might also be described as protecting expression, but an important
distinction is that a patent prevents others from using what is patented
regardless of whether it is independently developed; a copyright does not,
except as noted for water craft hull designs in the next paragraph.
COPYRIGHT REGISTRATION OF A WATERCRAFT HULL DESIGN
Water Craft Hull Design Registrations. A
special provision of copyright law (17
U.S.C. § 1301, et seq.) was enacted in 1998, and amended in 2008, to
protect vessel hulls and it parallels a design patent in many respects.
The law authorizes issuance of a certificate of registration for an
original design, which makes the vessel attractive or distinctive in
appearance to the purchasing or using public, even if its design is
dictated only by a utilitarian purpose. In addition to a hull, the
registration can apply to a plug, which is a model of a vessel used to
make a mold; and a mold for a vessel, which is a form in which a substance
for material is used. The Register of Copyrights is the
issuing authority and not the United States Patent and Trademark
Office. The period of protection is 10 years, and protection is
available only for original designs.
One important advantage is that registration gives the design owner 2
years from public disclosure of the hull design to seek registration, as
opposed to only one year for a design patent.
Publications showing the registered vessel hull design must be marked
with ''Protected Design'', the abbreviation ''Prot'd Des.'', or the letter
''D'' with a circle ,
or the symbol ''*D*''; the year of the date on which protection for the
design commenced; and the name of the owner, an abbreviation by which the
name can be recognized, or a generally accepted alternative designation of
the owner.
Individuals who make, use, sell or import the protected design without
the authorization of the registered design owner, during the period of 10
years from registration or first public use, may be subject to
infringement liability. It is not a drawing or picture of the hull
design that is protected, but rather reproduction of the actual hull for
uses other than teaching or analysis. In contrast, a design patent
has a term of 14 years from the issue date and prevents reproduction for
any use.
This registration terminates upon issuance of a design patent.
Also there is a broad experimental use provision, which permits others to
reproduce the registered hull for research.
COPYRIGHT ARISES UPON CREATION
Copyright When Fixed. The copyrightable work
must be fixed in a copy or phonorecord for the first time. Subject to
exceptions, a copyright is the exclusive right to, and to authorize others
to:
- prepare derivative works;
- sell or distribute copies;
- perform the work publicly; and,
- display the work publicly.
|
Two of the major exceptions are encompassed in doctrines
of "fair use,"
and "compulsory
license." For a further explanation, see the copyright
infringement discussion.
COPYRIGHT REGISTRATION
Registration. Copyright registration is a legal
formality intended to make the claim to a copyright a public record.
Registration is not a condition of copyright protection: Under the
present copyright law, a work is automatically protected by copyright when
it is fixed in a tangible medium. However, there are definite advantages in terms of
damages for early registration. For example, statutory damages and
attorney fees are only available if the copyright is registered either
before the infringement, or within three months of first publication of
the infringed work. (17 USC 412). For a further discussion of
infringement, see the copyright
infringement discussion.
Registration Advantages. Advantages of
registering copyright adhere relative to enforcing the copyright in court.
Generally, one must have a registered copyright to enforce the rights
granted above with the filing of an infringement suit.
- Registration, within 5 years of publication, establishes the minimum
level of evidence in court of the validity of the copyright and of the
facts stated in the certificate.
- Registration, within 3 months after publication of the work or prior
to an infringement of the work, affords the owner the right to collect
statutory damages and attorney's fees. Otherwise, only an award of
actual damages and profits is available to the copyright owner.
- Registration allows the owner of the copyright to record the
registration with the U. S. Customs Service for protection against the
importation of infringing copies. For more information, see the
U.S. Customs Service web site.
WHEN TO REGISTER A COPYRIGHT
Timing. Registration may be made at any time
within the life of the copyright. Unlike the law before 1978, when a work
has been registered in unpublished form, it is not necessary to make
another registration when the work becomes published, although the
copyright owner may register the published edition, if desired.
COPYRIGHT OWNER IF EMPLOYEE CREATES
Employee as Author. In the case of works made
for hire, the employer and not the employee is usually considered to be
the author. Works made for hire include works created by an employee
in the course and scope of his or her employment.
COPYRIGHT OWNER IF CONTRACTOR CREATES
Independent Contractor as Author. Section 101
of the copyright law defines a "work made for hire" and provides
that for a commissioned work, the parties may expressly agree in a written
instrument signed by them that the work shall be considered a work made
for hire. This could be a trap for the unwary business that
commissions a consultant to prepare written works. For example, if a
business pays a consultant to create software for use in the business and
there is no written copyright assignment, the business will likely only
have limited rights to use the software. That business could later
become an infringer if a later sought to sell the software and the
consultant may have rights to sell the software to other parties in the
same line of business. Even when the business has no intent to sell
the software, lack of full rights to the software could adversely affect
the decision of a prospective purchaser of the business. The lack of
a written agreement would also cloud ownership and use of software
improvements, called "derivative works." In short, a
written agreement assigning copyright ownership is essential in any
relationship with a contractor.
MARKING WORKS WITH A COPYRIGHT NOTICE
Copyright Symbol ©. The typical U.S. notice
for a copyright of visually perceptible works is the copyright symbol, ©,
followed by the year of first publication and the name of the owner. The
symbol may be replaced by the word, "Copyright," or the
abbreviation, "Copr." For non-visually perceptible works like
music,
(the letter P in a circle) is used on a phonorecord. Examples are:
© 2005 Louis Ventre, Jr.
Copyright 2005 Louis Ventre, Jr.
Copr. 2005 Louis Ventre, Jr.
2005 Louis Ventre, Jr.
Before March 1, 1989, use of copyright notice was mandatory on all published works. So, any work first published before that date must have the copyright notice or it may not be protected. If it did not carry the notice, there is a good chance it is in the public domain. Works published on and after March 1, 1989 do not need to cary the copyright notice. In other words, the copyright notice is optional, but it is ia good idea to have it in order to prevent a claim of innocent copying.
|
All Rights Reserved. The typical European
notice: "All Rights Reserved" is also sometimes used. However,
all works created after March 1, 1989 (Berne Convention effective date)
are automatically protected and no notice is required. The copyright in
the work of authorship immediately becomes the property of the author who
created the work. Today, neither of the traditional notices is mandatory
for copyright protection to apply to works created after 1989, although
the U.S. notice is recommended because it serves notice on the public and
precludes a defense of "innocent infringement."
International Protection and the Copyright Symbol ©.
There is no such thing as an "international copyright" that will
automatically protect an author’s writings throughout the world.
Protection against unauthorized use in a particular country basically
depends on the national laws of that country. However, most countries
offer protection to foreign works under certain conditions that have been
greatly simplified by international copyright treaties and conventions.
There are two principal international copyright conventions, the Berne
Union for the Protection of Literary and Artistic Property (Berne
Convention) and the Universal Copyright Convention (UCC). Foreign
protection is highly specific to the country in question. If you need to
know about a particular country, ask.
Two notes of caution on using the copyright notice are made:
- Works published before January 1,1978, are governed by the previous
copyright law. Under that law, if a work made in the United States is
published under the copyright owner’s authority without a proper
notice of copyright, all copyright protection for that work is
permanently lost in the United States. Peculiarly, similarly published
foreign works are saved from such loss by The Uruguay Round Agreements
Act of 1994. So similarly published foreign works get more protection
than U.S. works!
- The United States is also a member of the Universal Copyright
Convention (the UCC), which came into force on September 16, 1955. To
guarantee protection for a copyrighted work in all UCC member
countries (some of which are not party to the Berne Convention), the
notice must consist of the symbol © (the word "Copyright"
or the abbreviation are not acceptable), the year of first
publication, and the name of the copyright proprietor.
Where to Place Copyright Notice. The copyright
notice should be placed on copies or phonorecords in such a way that it
gives reasonable notice of the claim of copyright. The Copyright Office
has issued regulations concerning the recommended position of the notice
and methods of affixation. They can be found at 37
CFR §201.20.
COPYRIGHT PROTECTIONS VARIED
Copyright Term. The copyright term in the United States as enacted by Congress is: 95 years for works published before 1978; life of the
author plus 70 years for works created by a natural person after 1978; and 95 years from publication or 120 years from creation (whichever comes first) for works made for hire created
after 1978 (see 17 U.S.C. §§ 302(a), (c) and 304(a), (b)).
For an individual, the copyright term is currently 70 years plus the life of the author. In the case of "a joint work prepared by two or more authors who did not work for hire," the term
lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous
works (unless the author's identity is revealed in Copyright Office
records), the duration of copyright will be 95 years from publication or
120 years from creation, whichever is shorter.
Most books published within the past 50 years would likely fall within the term of copyright protection. Books published in the United States before January 1, 1964 were subject to a mandatory renewal requirement under the previous copyright law. If a U.S. author failed to comply with this requirement or other formalities imposed by U.S. law, his or her work may have fallen into the public domain.
U.S. copyright in any work published or copyrighted prior to January
1,1923 has expired by operation of law, and the work has permanently
fallen into the public domain in the United States. A handy table of
copyright expiration dates is published by Cornell University. Another is published by the Electronic Frontier Foundation.
Common Law and Copyright Protections. Before
1978, unpublished works were entitled to protection under common law
without the need of registration. Works published with notice prior to
1978 may be registered at any time within the first 28-year term, which
opportunity completely expires by 2007. Works copyrighted between January
1,1964, and December 31,1977, are affected by the Copyright Renewal Act of
1992, which automatically extends the copyright term and makes renewal
registrations optional. For works under copyright protection on or after
January 1,1978, registration may be made at any time during the term of
protection. Sound recordings fixed before February 15,1972, are not
eligible for federal copyright protection. The Sound Recording Act of
1971, the present copyright law, and the Berne Convention Implementation
Act of 1988 cannot be applied or be construed to provide any retroactive
protection for sound recordings fixed before February 15, 1972. Such
works, however, may be protected by various state laws or doctrines of
common law. For example, New York's highest court unanimously decided
April 5, 2005 in Capitol Records v. Naxos of America "that New
York "provides common-law copyright protection [in perpetuity] to
sound recordings [of performances] not covered by the federal copyright
act, regardless of the public domain status in the country of origin, if
the alleged act of infringement occurred in New York." So pre-1972
recordings of performances may be protected by common law copyright at
least until federal pre-emption takes over in 2067 under the Sonny Bono
Copyright Term Extension Act (17 USC §301).
COPYRIGHT REGISTRATION COSTS
Costs. The basic registration fee payable to
the Copyright Office for a copyright varies as follows:
• 1 to 50 additional works and alternate identifiers are charged a flat fee of $60
• 51 to 500 additional works and alternate identifiers are charged a flat fee of $225
• 501 to 1,000 additional works and alternate identifiers are charged a flat fee of $390
• 1,001 to 10,000 additional works and alternate identifiers are charged a flat fee of $555
• 10,001 or more additional works and alternate identifiers are charged a flat fee of $5,550
Attorney fees add a minimum of $600, plus expenses for out of pocket costs. If you
prefer to prepare your own application, the Law Firm of Louis Ventre, Jr.
will review your application prior to submission for $250. For other
copyright services, charges are by the hour at a rate of $250 per hour,
plus costs.
Other Government Costs. The Copyright Office of
the Library of Congress charges the following: search fees and
certifications $200 per hour (eff. 20-MAR-2020); additional
certificate $40; and recordation of license agreements $105.
Back to top
In addition to copyright registration, The Law Firm of Louis Ventre,
Jr. can be engaged to perform the following additional tasks:
- Notices of Normal Commercial Exploitation or Availability at
Reasonable Price to prevent libraries from making copies of
phonorecords during the last 20 years of the copyright term.
- Services ancillary to compulsory and statutory licenses in the
Copyright Act:
-
Statutory license for secondary
transmissions by cable systems (section 111);
-
Statutory license for making ephemeral
recordings (section 112);
-
Compulsory license for the public
performance of sound recordings by means of a digital audio
transmission (section 114);
-
Compulsory license for making and
distributing phonorecords (section 115);
-
Compulsory license for public
performances on coin-operated phonorecord players (section 116,
[1978-1989, 1993], section 116A (1990-1993);
-
Compulsory license for the use of
certain works in connection with noncommercial broadcasting (section
118);
-
Statutory license for secondary
transmissions by satellite carriers for private home viewing
(section 119);
-
Statutory license for secondary
transmissions by satellite carriers for local retransmissions
(section 122); and,
-
Statutory obligation for distribution
of digital audio recording devices and media (chapter 10).
- Investigation of the copyright status of a work (The Law Firm will
also arrange for an official copyright office search.)
- Advice on compliance and the copyright regulations;
- Transfer of copyright owner's exclusive rights;
- Correction of an error in a copyright registration; and,
- Drafting a "work for hire" provision for a contract.
PROCEEDING WITH COPYRIGHT REGISTRATION
How to Proceed. Telephone (703-242-1247) or email Louis Ventre, Jr. with a
short description of the information you want to copyright or other
requirements relating to copyright. If the Law Firm has no conflicts
and agrees to represent you, you will receive a retainer agreement with
additional instructions on what information is needed.
Home | How
to Communicate | Email to: lventre@lventre.com | Useful
Links
Client
Inventions | Bio | FAQs | Disclaimers
Search
Click Here to Fill-In a Web Form Email
© 2004 Louis Ventre, Jr.
This file last modified 07/04/22.
This page is https://www.lventre.com/copyright.html.
|