The area of copyright confronts some of the most widely publicized intellectual property (IP) issues today--software piracy, music file sharing, film and video game piracy. Technological advances such as digitization and the Internet have made reproduction and global distribution of copyrighted works both easy and inexpensive. As a result, copyright enforcement has become an issue of primary concern for businesses around the world.
Every business has materials, such as marketing materials, that are protected by copyright. In addition, your business will want to avoid infringing the copyright rights of others.
Copyright is a form of legal protection granted to the authors of original creative works. Copyright is used to protect a wide range of subject matter, including:
- Literary works
- Musical works
- Dramatic works
- Pantomimes and choreographic works
- Architectural works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Computer programs
Contrary to popular belief, copyright protection extends only to the tangible expression of an idea, not to the idea itself.
Virtually every business, large or small, creates materials that are protected by copyright. Common examples include:
- Brochures
- Catalogs
- Advertising
- Instruction manuals
- Logos
- Web sites
Rights Afforded by Copyright - Example
Following is an example of a hypothetical copyright owner and the various ways in which she can control and exploit her copyrighted work.
Annie Gesso is a young painter whose works have caused a worldwide sensation. One of her paintings was printed on the cover of Time magazine, with her permission. Annie owns the copyright in all of her paintings.
Since her work appeared on the cover of Time, Annie has been inundated with requests to use her paintings in various ways, including:
- Displaying the paintings in modern art museums
- Printing and selling posters of the paintings
- Reproducing images of the paintings on note cards and calendars
- Using her paintings on the set of a new movie
- Creating a children's book with illustrations based on modified versions of her paintings
It is within Annie's rights as a copyright owner to authorize and control all of these uses of her work.
Simply stated, the copyright owner has the exclusive right to do and to authorize others to do any of the following:
- Copy the work
- Change the work
- Distribute the work publicly
- Perform or display the work publicly
Click here to see an example of the various ways a copyright owner can control and exploit his or her work.
Originality
In copyright law, "originality" means that the work was independently created by the author and has some minimal degree of creativity. "Independently created” simply means that the work must be the independent product of the author and not copied from someone else's work. A work can be original without being novel or unique.For example, an author's new book "How to Pick Stocks and Get Rich," is original in the copyright sense so long as the author did not create the book by copying existing material, even if it is the millionth book written on the subject of choosing stocks.
Fixed in a Tangible Form
"Fixed in a tangible form" means that the work is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. It makes no difference what the form, manner, or medium of expression is. Words, for example, can be fixed by writing them down, typing them on an old-fashioned typewriter, dictating them into a tape recorder, or entering them into a computer.
A copyright concept related to the requirement of fixation is that of idea versus expression. Specifically, copyright does not protect mere ideas; it protects the manner in which an artist expresses an idea, whether in words, painting, sculpture, or any other tangible form. Copyright protects against others simply copying an artist's work, but it does not prevent other artists from creating their own original expressions of the same idea.
For example:
- Anyone can use the idea of a hero with superhuman powers. However, only the copyright owners of "Superman" can publish stories about that particular superhero and the world they have developed around that character.
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Anyone can use the idea of a boy who discovers he has magical powers. However, only J.K. Rowling can publish stories about Harry Potter or any of the other characters who populate her books.
In the United States and in most other countries, copyright protection does not depend upon any official procedures or formalities. Rather, a creative work is considered protected by copyright as soon as it exists, so long as it is both:
Although registration is not required to protect a copyright, many countries do have registration systems. In many of these countries, registration makes it easier for copyright owners to prove copyright infringement cases in court. In the United States, owners of works of U.S. origin must register their copyright in order to initiate a case in U.S. court. Copyright registration:
- Reflects the date on which the author established ownership with the Library of Congress. (See Module 4 for more information on copyright registration.)
- Is generally necessary for border enforcement of copyrights (See Module 6 for more information on border enforcement of copyrights.)
In addition, although a copyright registration is not required in the United States, the U.S. Copyright Act establishes a mandatory deposit requirement for works published in the United States. For more information on this requirement, go to: http://www.copyright.gov/circs/circ07d.html.
Term of Copyright Abroad
WTO members are obligated to provide a minimum term of protection of life of the author plus 50 years. Increasingly, countries are establishing longer terms of copyright protection. For example, the European Commission, like the United States, has extended the term of protection to 70 years after the author's death. Mexico affords the longest term of protection--the life of the author plus 100 years.
In the United States, the length of time a copyright is protected (for works originally created on or after January 1, 1978) is:
- The life of the author plus 70 years, if the owner is a person
- 95 years from publication or 120 years from creation of the work, whichever is shorter, if the owner is a corporation or other entity
For works created prior to 1978, duration is governed by the copyright act of 1909, which provided an initial 28 year term of protection with possibility of subsequent renewal.
In other countries, the term of protection for a copyright varies. However, many countries provide for at least a 50-year term.
Work Made for Hire
Under the "work made for hire" doctrine, if an employee creates a work in the course of his or her employment, the employer--not the employee--is considered the author of the work and the owner of the copyright in it. This is the law in the United States and some countries in Europe. In other countries, the employee owns the copyright unless there is a specific contract transferring the copyright to the employer.
For example, ABC Software, Inc. (ABC), a U.S. company, assigns Tim Smith, one of its junior programmers, to work on a program to assist real estate investors with managing their investment properties. Tim develops the software product virtually on his own, with no assistance from others in the company. Once completed, the product is an unexpected success, and the company realizes tens of millions of dollars in revenue from it. Nonetheless, Tim's only reward for his work, in addition to his regular salary, is a $500 end-of-year bonus. Tim is bitter and sues ABC, claiming the copyright in the software is owned by him because he created it. Tim will lose this case because he created the software as an employee of ABC, and the creation of the software was within the scope of his duties as a programmer for the company. As such, the copyright in the software is automatically owned by ABC.
If Tim had been working as an independent contractor, the results of his lawsuit may have been quite different. In that case, Tim would have owned the copyright in the software unless he signed an agreement transferring ownership of the copyright to ABC. The results of Tim's lawsuit might also have been different if Tim had been employed as an accountant, rather than as a computer programmer, for ABC. In that case, the creation of a computer program likely would have been considered outside the scope of Tim's employment, and Tim may have won the case.
Note that this hypothetical example reflects the law in the United States and some other countries. In certain other countries, the law with regard to employer/employee creations is exactly the opposite.
Joint Work
A "joint work" is created when two or more authors agree that their contributions to a particular work are to be merged together to form an integrated or interdependent whole. If a joint work has been formed, each contributor is considered the author of the entire work, and all contributors are deemed to be co-owners of the copyright in the entire work unless they agree otherwise (preferably in writing). For example, a band that creates a song together through contributions by all band members would be considered a joint work.
As a general rule, the person who created a work is considered its author and the owner of the copyright in the work. However, there are exceptions to this rule, the most significant of which are:
- Work made for hire
- Joint work
- Contracts that transfer copyright ownership
Note that ownership of an item, such as a CD or book, is not the same as owning the copyright in the item. The owner of the item may sell, lend, or give it away, but he or she may not make additional copies or do anything else that the copyright owner has the exclusive right to do.
Businesses should clarify in their contracts who owns the IP and what types of work are covered by the contract. Businesses are often surprised to learn that outside graphics and Web site designers own the copyrights in the commissioned works in the absence of a written transfer of the copyright.
It is important to remember that all of the rights that exist in your business's marketing brochures, Web site and other materials also exist in the materials of third parties. In the course of your business's activities, you must be careful to ensure that you do not unknowingly violate someone else's copyright.
Today, the most common source of unintentional copyright infringement is the Internet. There is a common misperception that any material posted on the Internet is free for others to use and copy. To the contrary, copying any material from a third-party Web site, including text, photos, graphics, or other elements of another's Web site content, is unlawful. For example, if a company needs an image of an elephant to include on a clever marketing piece it is sending out, it cannot simply find an elephant image on National Geographic's Web site and copy it. The most likely lawful source of such an image would be a stock photo Web site, from which an elephant image could be selected and the right to use that image purchased.
Note, however, that if the copyright in the published material has expired, it may be considered to have fallen into the public domain and would, therefore, be free for anyone to use.
You have now completed the copyright lesson of this module.
- If you wish to proceed directly to information about protecting your copyright in the United States, select Module 4 using the menu on the top left of this screen.
- If you wish to review the introductions to trademarks, patents and/or trade secrets, continue with this module.