A copyright protects an original work of authorship.  The work must have a minimal amount of creativity in the form of literary, musical, pictorial, or graphic expression.  Protection begins when the work is created in a fixed form.

Not all works can be protected.  For example, you cannot obtain a copyright for ideas, concepts, methods, domain names, the names of products or services, the name of your business, a pen or stage name, the title of a work, mottoes, slogans, recipes, formulas, or short advertising expressions.  However, some of these creations may be protectable by trademark, as a trade secret, or under unfair competition laws.

In order to enforce your copyright in court, the work must be registered with the U.S. Copyright Office.  The timing of your registration can affect what damages you may be awarded if there is an infringement.  For example, if you file for a copyright after the infringement occurs, you may not recover statutory damages.

What does a copyright protect?

A copyright protects the expression of an idea, which may be in the form of software, books, poetry, songs, novels, movies, artwork, architecture, or another fixed medium.  Because a copyright protects the expression of the idea, but not the idea, it is possible for two persons to have a copyright based on the same idea but expressed differently.  Of course, if one person substantially copies the other party’s expression of the idea, there may be copyright infringement.  A copyright does not protect facts.

When you own a copyright, you have the exclusive right to:

• Reproduce
• Distribute copies
• Perform
• Display
• Create derivative works.

Who owns the copyright?

Even when you pay someone to create a work, the payment does not automatically give you ownership of the copyright.

If the creator is an employee, then the author of the work is the employer unless an employment agreement specifies otherwise.  Whether a person is an employee is determined by agency law, which can differ from the conventional employee-employer relationship.

If the creator is an independent contractor, the author is the person who created the work, not the party who paid for the work unless:

• The work was specially ordered or commissioned and falls within one of nine categories, which include a contribution to a collective work, as part of a motion picture or other audiovisual work, a supplementary work, a compilation, a translation, an instructional text, a test, an answer for a test, or an atlas, AND
• The parties agree in a written instrument signed by both of them that the work should be considered as a work for hire.

If a business pays for creation of a work that is not a work for hire, the business may still be able to contract with the work’s author for assignment to the business of some or all of the exclusive rights to the copyrighted work.

If it’s on the Internet, may I copy it?

Just because content is on the Internet, you may not rightfully copy the content for your own purposes.  The terms of use of most websites merely license the content to you to view or download for your personal use.  If you use the content beyond the license, it may be copyright infringement.

You may use the copyrighted works of others if your use is a “fair use.”  Fair use generally does not allow you to copy a work and profit from it.  Fair use includes criticism, comment, news reporting, and educational purposes.  The Copyright Act lists four factors to consider for determining fair use, but there is no bright line rule.  The factors are:

• The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit, educational purpose,
• The nature of the copyrighted work,
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
• The effect of the use upon the potential market for, or value of, the copyrighted work.

What we do

While you have a copyright in original materials which you create, you should put others on notice that you intend to protect your rights and you might want to register your materials with the U.S. Copyright Office.  In addition, you may be able to have websites take down your material if you have not given permission for its use.  We have helped our clients register their copyrights and have infringing works taken down.  If you believe your copyright is being infringed or if you receive a takedown notice, we can help.