Copyright in the United States provides protection to the author of an original work, and is secured whenever the work becomes fixed in a tangible medium. Copyright protection embodies a set of exclusive rights, including the right to reproduce, adapt, distribute, publicly perform, and publicly display the underlying work. These rights may be divested individually or collectively by the copyright owner.
The author becomes the owner of the copyright, unless the work is produced by an employee as part of his or her employment, in which case it belongs to the employer as a “work made for hire”.
Registration and Notice
While copyright registration is not necessary for the existence of the copyright, federal copyright registration is required before suit may be brought for copyright infringement. In addition, timely registration is needed in order for statutory damages to be available in an infringement suit.
Though no longer required by law, it is strongly recommended that proper copyright notice be affixed to all tangible copies of the work, whether or not the work is a registered. Proper copyright notice in the United States consists of three elements: (1) “ © ”, the word “Copyright”, or the abbreviation “Copr.”; (2) the year of first publication; and (3) the copyright owners name. The term “All Rights Reserved” should follow the copyright notice. For example, “© 2008 Jane Smith, All Rights Reserved”. In the case of sound recordings, the letter P in a circle should be used in lieu of ©.
Scope and Duration of Copyright Protection
Copyright protection is limited to the expression of the work and not to the underlying idea. For example, a copyright may be extended to a compilation of facts, but only inasmuch as it embodies some minimal form of original expression, and may not be used to limit the use of the underlying facts.
The duration of a copyright is controlled by statute and has changed several times over the course of U.S. History. Thus, the life of the copyright depends on when the work was created, published, or registered. For works created on or after January 1, 1978, the copyright typically lasts until 70 years from the death of the last living author, or the shorter of 95 years from the date of publication or 120 years from the date of creation, if it is a “work made for hire” or by an anonymous author.
The unauthorized copying, selling, or performing of a copyrighted work constitutes copyright infringement. To prevail in a case of infringement, the copyright owner must show that (1) the work is protected by copyright, and (2) the alleged infringer has copied the work; i.e., it was not created independently. Copying can be shown by evidence of access to the copyrighted work and a “striking similarity” between the copyrighted work and the alleged copy. Infringement suits are generally brought in Federal Court. Available remedies include an injunction, impoundment or destruction of infringing copies, and monetary damages, including costs and attorney’s fees. A commonly raised defense to a copyright infringement action is “fair use” which includes parody, criticism, educational use and news reporting.
Changing Technology, Changing Law
Copyrights are generally available for all literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual, sound recording, and architectural works, including compilations and derivative works. The continual evolution of technology, however, continues to blur the limits of copyright protection and presents a challenge to the efficacy of the copyright law.
In most countries, copyright remains the primary form of protection for computer programs or software. While patents are available for software operations that may be reduced to an algorithm, all other aspects of a given computer program must rely on copyright law for protection. Various types of so-called “software patents” have been proposed in other nations, but have yet to gain favor with the international community.
In the United States, the Semiconductor Chip Protection Act of 1984 (SCPA) creates an exclusive right to certain aspects of the structural design of Semiconductor Chips. A “mask work” is the protected subject matter. The mask work defines the design of the chip in three dimensions, since a semiconductor chip consists of several layers of electronic circuits and elements that are laid down one atop another. Similar laws have been adopted in many industrialized nations.
Other developments continue to take place in the legislature and in the courts. For example, in MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005), the Supreme Court decided that peer-to-peer file-sharing companies could be held liable for inducing copyright infringement. Another legislative development includes the Digital Millennium Copyright Act (DMCA), which criminalizes the circumvention of digital copyright protection measures and carves out limited exemptions to vicarious liability for internet service providers (ISPs).
To learn more about developments in copyright law, please contact us.