Small Business Law – Understanding Copyright

Small Business Law – Understanding Copyright

Copyright law is a federal statute in the United States, found under Title 17 of the U.S. Code. The Copyright Act of 1976 (the “Act”) revised Title 17 and provided the structure for the current laws regarding copyright. Copyright is important because it provides an incentive for the creation and distribution of new works.

Basics of Copyright

According to §102 of Title 17, copyright protection exists for “original works of authorship fixed in a tangible medium of expression,…which can be perceived, reproduced or otherwise communicated.” To be “fixed in a tangible medium of expression,” the work must be recorded in some physical medium, such as on paper or audio tape. Works of authorship include the following:

  1.      literary works;
  2.      musical works, including accompanying words;
  3.      dramatic works, including 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.

Additionally, there is one other requirement for a work to be considered copyrightable subject matter. Pursuant to §102(b), copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Often, simply the term “idea” is used when discussing §102(b). Ideas may simply belong to the public domain, which means they are under no intellectual property protection. Alternatively, protection may exist, but only if the idea is found to be patentable subject matter; copyright offers no protection for ideas.

Under §106 of Title 17, the copyright owner is given the exclusive right to do many things, including to reproduce the work, prepare derivative work based on the copyrighted work, and to publicly distribute the work. Generally, this means the owner has a monopoly, or complete control, over the work. However, the duration of the copyright is limited by §302. For work created today by a real person, the duration is the life of the author plus an additional 70 years. For work not created by a real person, the duration of copyright protection is 95 years from first publication or 120 years from the date of first creation, whichever is shorter.

Copyright Protection

Unlike patent and trademark protection, copyright protection is rather simple to obtain. At the moment a work of authorship is fixed in a tangible medium of expression, copyright protection exists. There is no registration or notice requirement. This means that the symbol “©” is not necessary to be placed on works. However, there are two important items to note in regards to registration. First, pursuant to §407 of the Act, there is a deposit requirement. For published works, two complete copies of the “best edition” must be deposited with the Copyright office, though this is not a requirement in order to receive copyright protection.

Additionally, though registration is not a condition for copyright protection, it is required under §411 in order to bring an infringement action. For published works, registration is accomplished by submitting to the Copyright Office the “best edition” copies discussed above, as well as a registration form and the required fee. Registration also provides the benefits of the copyright owner being allowed to elect statutory damages and to receive attorney’s fees in a subsequent infringement action.

Protect Your Work

While copyright protection is fairly easy to obtain, there are still several reasons you may find yourself needing the advice of counsel in relation to your work. Perhaps you believe your rights as a copyright owner have been infringed or you are unsure of whether your work falls under copyrightable subject matter. If you have questions about copyright or trademark, contact Philadelphia Small Business Lawyer, Stuart A. Mickelberg.

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