Thursday, May 5, 2011

What is a Copyright?

                A copyright allows the owner of a creative work to prevent others from using that work.  The rights conferred by the Copyright Act is the exclusive right to reproduce the work, display or perform the work, distribute copies of the work, and create derivative works (e.g. a movie based on a book).  In order to achieve copyright protection, the creative work (or “work of authorship”) must meet three criteria:
1.       It must be original (i.e. created by the author, not copied);
2.       It must be fixed in a tangible medium of expression (e.g. recorded on a computer, painted on a canvas, written on paper, etc.); and
3.       It must have at least some creativity (i.e. produced by human intellect).
If the work of authorship meets these three criteria, then it obtains copyright protection.  With regard to the last item, it is a very low standard to find creativity in the work of authorship.  Courts will generally not insert their subjective view of what is or is not creative.  For example, the alphabetical listing of telephone numbers in a directory is not creative.  In addition, copyright does not protect ideas or facts, it protects the expression of ideas or facts.  For example, a copyright may protect J.K Rowling’s series of Harry Potter novels, but may not protect against another’s expression of an underage wizard battling the forces of evil. 
                The moment that the work of authorship is fixed in a tangible medium, it is protected.  There is no requirement to register the work with the United States Copyright Office or providing a copyright notice (i.e. “© 2011 Jane Doe”).  However, placing a notice on your work of authorship is usually a good idea.  A registration is necessary to unlock the courthouse doors to assert your right to the work of authorship.  In other words, if you did not register your work of authorship, then you may not sue an infringer.  Registration also provides a legal presumption that the copyright is valid.  The registration also makes it easier to recover damages because it allows the copyright owner to recover statutory damages and not have to prove actual damage.  This is particularly helpful when it is difficult to ascertain the amount of damage suffered by the copyright owner. 
                Generally, the author of a work retains copyright protection for his/her life plus 70 years.  However, for any Copyright still within its renewal term as of October 27, 1998, then the length of protection is 95 years from the date the Copyright was secured.