Copyrights and Copy Cats (Intellectual Property Series II)

So you wrote a new play, a movie script, or computer game, and you want to prevent people from stealing your creative juices as you try to find investors, or after you published it. What are you rights? How do you protect them? What do you do if you are the victim of idea theft? That’s a lot to cover, and I hope to get to all of it eventually, but for today, let’s go over the basics of copyright, and later on, I’ll get to the more advanced material.

Disclaimer: The following information does NOT constitute legal advice and is only for general educational purposes. Each situation is different and specific legal issues usually require additional research and investigation, so do not rely on this article to address a particular legal issue; use this as a starting point to gain a general understanding. This article, although educational in purpose and substance, nevertheless, might be deemed attorney advertising, and prior results do not guarantee future success.

1. What is Copyright?

Copyright is a form of legal protection provided by the laws of the United States[1] to the authors of “original Works of authorship fixed in any tangible medium of expression,” including literary, dramatic, musical, artistic, and certain other intellectual Works. Copyright protections generally are based on federal not state laws, but there is such a thing as "common law copyrights" or "state copyright law" but it is a complicated subset. Incidentally, the way the law is written, it’s kind of keen on referring to those originally authored tangibly fixed expressions as “Works”; so such things are “Architectural Works” “Literary Works” “Works Made for Hire” and so on.[2]

The ability of Congress to pass laws establishing copyright privileges and protections is derived directly from the U.S. Constitution, specifically, Article I, Section 8 (the “Copyright Clause”) which empowers the U.S. Congress to enact laws “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Since the very inception of Congress, it has passed several versions of the law, including: the Copyright Act of 1790, the International Copyright Act of 1891, the Copyright Act of 1909, the Copyright Act of 1976, and the Digital Millennium Copyright Act (1998).

Copyright protection is available to both published and unpublished Works.[3] A copyright owner has the exclusive right to do and authorize others to do the following: (i) reproduce the Work in copies or phonorecords (ii) prepare derivative Works based upon the Work (iii) distribute copies or phonorecords of the Work to the public by sale or other transfer of ownership, or by rental, lease, or lending; and also

(iv) perform the Work publicly, in the case of literary, musical, dramatic, and choreographic Works, pantomimes, and motion pictures and other audiovisual Works (v) display the Work publicly, in the case of 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 (vi) perform the Work publicly (in the case of sound recordings) by means of a digital audio transmission.[4]

2. Who Owns the Work and the Copyright?

Good question. It’s a tad more complicated than it might seem. Usually, the author has rights to their own Work.[5] If two people co-wrote the Work, guess what? Yep, they both own it.[6] However, a Work Made for Hire belongs not to the author, but for whom it was made - unless - otherwise agreed.[7]

So … say you are a Mickey Spillane-type (ask your parents) script writer, updating turn of the century gumshoe detective stories for your modern television network, that employs (or contracts with) you; then, sorry! Likely you do *not* own the rights to the screenplay because you were *hired* to write it for someone else; so the television network probably owns it - unless you have a fancy contract lawyer and a lot of bargaining power.

Now, the rules get a bit more interesting if you are working on compilation, i.e. a part of something larger. For instance, if you write entries for Encyclopedia Britannica (wait, is that still a thing…?),[8] you probably *will* have a copyright to your own article. However, chances are the encyclopedia company will own the exclusive rights to publish not only your article in the context of the entire compilation but also you (as author of only one or several articles in a larger publication) will *not* have rights to publish the compilation. Likely, though, you will be able to publish your own contribution at will, unless you and the encyclopedia company contracted differently.[9]

Also, you should know that mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright to its contents.[10] Similarly, in the absence of an agreement to the contrary, a transfer of ownership of a copyright or of any exclusive rights under a copyright do *not* convey property rights in any material object.[11]

In other words, when you buy a book, yes, you have a right to own the book and even give it or sell it to someone else, but you do *not* suddenly have the right to reproduce the contents at will (as with a photocopier). And, if I own the book, and happen to own the copyright on the book’s content (because I’m the author, for instance), and I let you make copies of the book, that doesn’t also mean you own the book (unless I specifically give it to you).

All rights can be transferred in whole or in part to anyone, at least as much as any other personal property.[12] Huh? The owner of a copyright can sell their copyright outright or license some or all of their rights to one or more people, either exclusively or not, for any length of time that the current holder has rights to the copyright.

For instance, if I own the copyright to this piece on copyrights (oh wait I do), I could give you, dear reader, permission to re-post it somewhere. Or I can allow you to re-post it in many places. Or only in one place for a year and many places after that. Or I can let you do all that *and* give you permission to permit *others* to do the same thing. Whatever I want … mostly. However, *you* must stay within the bounds of the license, or I may be able to sue you.

3. Um, So Speaking of Time,

How Long Do I Own the Copyright?

I knew you were going to ask me that one. Ugh. Ok. Here’s where it gets a bit complicated.

For Works originally created on or after January 1, 1978, the copyright protection lasts from the time the form of expression was fixed in a tangible medium for the first time until the author’s life, PLUS 70 years.[13] So, John Doe writes, “Harrowing Tales of the Legal Profession” in 2010; Mr. Doe, Esq. lives until 2040. The Copyright goes from 2010-2110 (2040 + 70).

If Mr. Doe co-wrote this masterpiece with his lovely legal wife, Jane Doe, Esq. and Jane survived until 2045, the Work would last until 70 years from the life of the longest living co-author, so add another five years until 2115.[14] For anonymous Works and pseudonymous Works, generally it’s 95 years from publication or 120 years from creation, whichever is shorter.[15]

For Works published with a copyright notice, or that were registered with U.S. Copyright Office in an unpublished form before 1978, the copyright lasts 28 years from the date it was secured (although it could be renewed).[16] However, the Copyright Act of 1976 extended the second renewal term to 47 years (total 75 years from publication or registration) for many copyrights (it’s a bit complicated).[17] In 1998, the Digital Millennium Copyright Act extended renewals another 20 years to 95 total, potentially.[18]

Pro Tip: Prior to 1978, to secure copyright protection, an author had to “publish” their Work and mark the Work with a copyright notice or register it with the U.S. Copyright Office.[19] “Publication” meant the distribution (or offer to distribute to a group for further distribution) of copies or phonorecords of a Work to the public by a sale or other transfer of ownership or by rental, lease, or lending.[20] Public performance or display was not by itself “publication” and alone could not secure a copyright.[21] After 1978, an author merely had to fix their idea in a tangible medium of expression.[22]

In plain English this means as soon as you commit your idea to writing (a phonorecord, movie, computer disk, stone tablet, etc.), it’s yours. You don’t even need the little “c” in a circle.

4. Registration?

Wait?! I don’t have to register my copyright and be protected? I mean if I just created something? And that “circle c” there’s no power in it?? Ok. Sort of. Yes. No; the c in a circle does have power, it’s just not necessary.

The © indicates that something is copyrighted. You don’t need it. You could spell it out. The proper manner in which to indicate something is copyrighted is “© 2017 John Doe” or “Copyright 2017 John Doe.”[23] It’s technically not necessary to write either form of this copyright warning, but the warning does put the reader on notice; it also prevents an infringer from claiming accidental infringement in mitigation of actual or statutory damages, except as indicated by 17 USC 504(c)(2) (essentially Fair Use).[24] In other words, they can't pretend they didn't know it was copyrighted; it says so right there!

Registration with the U.S. Copyright Office does provide some very important protections, even if it is not necessary: registration (i) establishes a public record of the copyright (ii) permits the filing of an infringement lawsuit if registration is made before publication of an infringing piece or within five years of the initial publication of the protected Work (iii) shall act as prima facie evidence the copyright is valid (iv) allows the owner to record their registration with the U.S. Customs service for protection against importation of infringing copies (v) and best of all (!!), if made within three months of publication or before an actual infringement, entitles the copyright owner statutory damages (otherwise, copyright owner is only entitled to actual damages).[25]

In case you missed it, you can’t bring a lawsuit unless you register the copyright. So, yes, you have a copyright the minute you write an idea in a tangible medium (even if you don’t use the ©). However, if someone copies your material without a right to do so, you can’t sue them until you register. Also, registration provides statutory damages ($750 - $30,000),[26] which is important because otherwise you have to prove your damages, which can be both difficult and expensive. Also, you get attorney fees (yeah!)[27] because you know we're expensive and stuff.

So, how do you register a copyright anyways? Well, you can go to the U.S. Copyright Office and fill out an online form for around $35-55. If you have to do any copyright searches they go upwards of $200/hour.

5. Anything I Can’t Copyright?

In no case does copyright protection for an original Work of authorship 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.[28]

Also, you cannot copyright titles, names, short phrases, slogans, familiar symbols or designs, lettering, coloring, mere listings of ingredients or Works consisting entirely of information that is common property containing no original authorship (for example height and weight charts, calendars, etc. - although you might be able to copyright an original presentation of such things).[29]

Conclusion

This article gives you an overview of what copyright law is, what you can and can’t register, for how long your copyrights are good, and a taste of the penalties and privileges that await you for registration or infringing. In future articles, I will deal with Fair Use, computer programs (and of course games!) and some other fun stuff, so stay tuned!

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Hyperlinks enabled, try them!

[1] Title 17 (Copyrights), Section 102 (17 USC 102).

[2] 17 USC 101.

[3] 17 USC 106.

[4] 17 USC 106.

[5] 17 USC 201(a).

[6] 17 USC 201(a).

[7] 17 USC 201(b).

[8] Aww, not really, not since 2010, at least not in hardcover.

[9] 17 USC 201(c).

[10] 17 USC 202.