Tuesday, November 23, 2010

Introduction to Copyright

(FN1) Copyright provides the creator of a qualified work the legal authority to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. The legal considerations regarding copyright include the qualified work, limitations on the copyright, registration, and licensing. Copyright is a property right, meaning that the creator may sell, give, exclusively license or assign, or even grant non-exclusive licenses. Other laws describe the creator's right to recover an assignment, as well as defining circumstances when the nature of employment grants ownership in the work to another person.

Copyright applies to eights types of works. These are (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, (such as a play or musical) including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (FN2).

As indicated by the list of the qualified works, some works may include other types of work. A musical composition may have multiple copyright owners because one person authored a literary work, such as a poem or book, which became the lyrics, and another person authored the notes of the musical composition. Conversely, the producer of a play, a musical or a screenplay could create and own the copyright in the words of the work, and in the music accompanying the work if the same author also created the music.

In other situations, a song composer might grant a license to a band play a song. The band might then perform the song for a recording studio, which would own the sound recording rights, while a movie studio may hire the band and a choreographer for a movie. In a majority of cases, the band still owns its performance rights, the choreographer gets the rights to the dance moves the choreographer wrote for the backup performers, while the movie studio would own the movie rights. Along the way are artists creating posters (pictorial and graphic works) for the band, the recording studio, or the movie studio.

One point of clarification regards a confusion of copyright with patents and trademarks. Copyright protection does not 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. (FN3). These protections apply only to patents, if the idea is eligible, or to trade secrets, if the idea is used in business and is properly kept a secret. A copyright protected work, generally artwork, may be used as a trademark, if the work is properly used to identify a brand of product or service.

While there are eight types of works protected by copyright, there are only six legal rights to the power of a copyright owner to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. (FN4). The six legal rights fall into two categories, the right to copy, and the right of public performance. If a type of work is not covered by a copyright, then the public may freely exploit that type of work. As a matter of implicit exception, people have the right of private performance. The qualifications of a private performance, however, are limited. Home performances are usually private, although any commercial activity related to the performance is often enough to qualify as a public performance.

The first of the rights applies to all eight types of work. The creator may grant permission to anyone to reproduce the work in copies, or in the case the sound recordings, as phonorecords. A copy literally means exact reproductions. A song composer or the composers of the music and lyrics the composers may grant a license to a sheet music publisher to reproduce the sheet music. A band may record an album at home or rent a studio, and grant a license to a music publisher to reproduce the recording.

The second of the rights applies to disposition of the copies, i.e. the reproductions. The creator may grant permission to anyone to copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

The third of the rights applies to the creation of derivative works based on the work. A derivative work is something other than an exact copy of the original work, such as taking a photograph of a painting, a painting a picture onto a tile, creating a motion picture based on a play, or even taking an image and distorting it for artistic purposes. The protection of derivative works is important for creators that create a work in one format (film), and then license a company to create the derivative work another form, such as a digital copy.

The fourth of the rights applies to allowing people to perform the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio­visual works. This right protects authors and artists by requiring permission to use the protected work as part of a public performance. This right is often the subject of a performance license, which is discussed below.

The fifth of the rights applies to allowing people to display the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio­visual work. This right protects authors and artists by requiring permission for people to publicly display, as for commercial purposes, works that they acquired for private display. Motion picture owners are the people who primarily enforce this right, although it legally applies to the use of paintings and sculpture in a commercial setting. This right is also discussed below.

The sixth right applies to people publicly performing sound recordings by means of a digital audio transmission (DAT). As suggested by the technology of digital audio transmission, this is a relatively new copyright, and generally applies to Internet and Broadband broadcasting. It would also apply, however, to the use of mp3 and other digital audio players used in a public setting. This right is discussed below in the licensing section.

As with other forms of intellectual property, copyright registration provides several benefits. The first benefit is that registration establishes a public record of the copyright claim as of the date of registration. Additionally, copyright 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. Published works in particular benefit in that registration establishes prima facie evidence of the validity of the copyright and of the facts stated in the certificate if registration is made before or within five years of publication. (FN5).

Unlike other forms of intellectual property, copyright registration is needed in the U.S. to assert protection. This is because registration is required for works of U. S. origin before the copyright owner can even file an action for infringement. (FN6).

Saving the best for last, however, is the benefit of statutory damages and attorney's fees for infringing activity. For infringing activity before the date of registration, a copyright owner may recover only actual damages (lost profits) and the profits from the infringing activity. If however, registration is made within three months after publication of the work and for infringing activity as of the date of registration, the copyright owner may recovery statutory damages of $750 to $30,000 per infringement, plus attorney's fees, and up to $150,000 if the infringer knew the copying activity was infringement. (FN7). In instances of file sharing, where lost profits are generally small and there are no profits from the infringing activity, registration immediately after creation is practically a mandate for any recovery.

The categories of copyright registration are a little different than the categories of works or of licensing. The categories of works are groups created by Congress according to the order in which Congress passed legislation protecting that class of works. The categories of licensing exist according to the order in which companies organized to license works that did not have organized protection. Registration, on the other hand, developed after legislation, but the Copyright Office used its rule-making capacity to categorize registration. So while there are eight classes of works and four classes of organized licensing, there are six classes of registration that only in part match the works and licensing classes. These are literary works, visual arts work, performing arts work, motion picture/AV work, sound recordings, and serial issue works.

The good news is that if something qualifies for copyright protection, it generally qualifies for copyright registration, and copyright registration is both simple and inexpensive. The easiest form of registration is electronic filing with a digital copy of the work uploaded for registration.

The copyright registrant (or the registered attorney) first provides information about the work, including the date of creation and the date of publication (if published) and the author's information. The next sections ask for the owner's contact information, the contact information for people who might want to license the work, the contact information and address for the Copyright Office to use, and finally, a certifying signature.
The copyright registrant (or registered attorney) then uploads the digital file, which is often in native format as the Copyright Office accepts 44 file formats. Acceptable formats for images include jpg, tif or tiff; the formats for word processing documents may be doc, rtf, pdf, htm, and txt. The Copyright Office also accepts database and presentation formats and compressed files of these files as well. (FN8). The last step is fee payment, which for electronic filing is currently $35, and may be by credit card. (FN9).

In the rare instance of file incompatibility, or due to the lack of capable Internet service, a registrant may send the copyright registration documents by mail or courier. For these occasions, the Copyright Office prefers the registrant to download Form CO from the Copyright Office website. (FN10). Form CO is a computer fillable form. When used with Adobe Reader or Adobe Acrobat, Form CO converts the information typed into the fields into a 2-dimensionable bar code, which allows the Copyright Office to scan the form information directly into the Copyright Office computer. After filling out Form CO, the registrant prints the form, writes a check for $50 to the Copyright Office, and sends the Form CO, plus the check and the work for registration to the Copyright Office. Using Adobe Reader (which is free) or Adobe Acrobat is important, as other programs do not create the 2-dimensionable bar code, in which case the Copyright Office charges $65.

The last alternative is filing the old-fashioned way, using forms that are customized according to the type of work. There is Form TX for literary works, Form VA for visual arts works, Form PA for performing arts works, including motion pictures, Form SR for sound recordings, and lastly, Form SE for single serials. As these forms require manual handling, the filing fee is $65.

Although the Copyright Office still accepts microform, photographs, slick advertisements and color photocopies, electronic media such as audiocassettes, videocassettes, CDs, and DVDs are also accepted. (FN11). An important consideration for mailed material is that the Copyright Office is irradiating all mail to kill harmful organisms The Copyright Office suggests that any CD and DVD be packaged in standard full-sized jewel box as mail irradiation weakens slim-line cases.

FN1) This posting is Part 1 of a series on Copyright.
FN2) 17 U.S.C. § 102(a).
FN3) 17 U.S.C. § 102(b).
FN4) 17 U.S.C. § 106.
FN5) 17 U.S.C. § 410(c).
FN6) 17 U.S.C. § 411(a).
FN7) 17 U.S.C. §§ 412, 504(c), 505.
FN8) U.S. Copyright Office, Help: List of Acceptable File Types, Revised: 16-Jun-2009, http://www.copyright.gov/eco/help-file-types.html
FN9) U.S. Copyright Office, Fees, Revised: 17-Sep-2009, http://www.copyright.gov/docs/fees.html.
FN10) U.S. Copyright Office, Copyright Notices, http://www.copyright.gov/forms/.
FN11) Copyright Office, Form CO Instructions, Revised 08/2009, http://www.copyright.gov/forms/formco2d-ins.pdf

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