Books A to Z
Copyright Basics

Matthew Marquardt, Editor

Topics:

What is Copyright?
When Does Copyright Arise? Who Can Claim Copyright?
What Works May be Protected by Copyright?
How is Copyright Acquired?
The Importance of Giving Notice: the Meaning of "©"
The Duration of Copyright: How Long Does it Last?
What is Copyright Infringement?
Transfer of Copyrights
Copyright Registration
Mandatory Deposit
International Copyright Protection




What is Copyright?

 Copyright is a form of protection provided by federal law to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works, by allowing authors to control the use of their works. The federal Copyright Act gives the owner of the copyright in a work the (generally) exclusive right to (a) reproduce the work in copies or phonorecords; (b) prepare derivative works based upon the copyrighted work; (c) distribute copies or phonorecords of the work; (d) perform the work publicly; (e) display the work publicly; or (f) authorize others to do any of these things. This protection is available to both published and unpublished works, and to a large extent exists independent of registration.

Copyrights are not unlimited in scope. The Copyright Act establishes several important limitations to copyright. In some cases, these limitations are specified exemptions from copyright liability -- for example, the doctrine of "fair use." In other instances the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.




When Does Copyright Arise? Who Can Claim Copyright?


Copyright protection subsists from the time the work is created -- legally, from the time it is put into "fixed form" -- and from that moment the copyright becomes the personal property of the author who created it. Thus only the author or one who has derived his or her rights through the author can rightfully claim copyright. However, the term "author" is a highly technical legal term with a variety of meanings. Some of the following affect the determination of the identity of the "author'" of a work.

Works for hire. Sometimes works are made "for hire" by an employee. The law presumes that the author of such a work is the employer and not the employee. By law "works made for hire" include (a) those works prepared by an employee within the scope of his or her employment, and (b) those works specially ordered or commissioned for certain specific uses -- but only where the parties have expressly agreed in a signed, written instrument to treat the work as a work made for hire.

Joint works. Barring agreement to the contrary, the authors of a joint work are joint owners of the copyright in the work. A joint work is one prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

Collective works. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole -- and therefore from a copyright in a joint work -- and arises initially in the author of the contribution. In collective works, unlike joint works, the contribution of each author is a distinct, separable work.

In some instances copyright protection may not be available in the United States for works first published outside the United States.




What Works May be Protected by Copyright?

 Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The work as fixed need not be directly perceptible, so long as it may be communicated with the aid of a machine or device (as for example a work fixed on a magnetic disk). Copyrightable works include literary works, musical works (including any accompanying words), dramatic works (including any accompanying music), pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works (either as completed buildings or as drawings). These categories are in many instances interpreted quite broadly, in order to extend copyright protection. For example, computer programs and most "compilations" (such as many directories) are registrable as "literary works;" maps and architectural plans are registrable as "pictorial, graphic, and sculptural works."

What is not protected by copyright. Several categories of material are generally not eligible for statutory copyright protection (although in rare instances they may be protectable under state "common law"). These include, among others: (1) Works that have not been fixed in a tangible form of expression (for example: unrecorded, unnotated choreographic works, or improvisational speeches or performances); (2) Titles, names, short phrases, and slogans; familiar symbols or designs; variations of typographic ornamentation, lettering, or coloring; listings of ingredients or contents; (3) Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices (as distinguished from descriptions, explanations, or illustrations of ideas or procedures, which may be protectable by patents); (4) Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).




How is Copyright Acquired?

 For the original author of a work, copyright is secured automatically upon the fixation of the work in a tangible medium of expression. This is frequently misunderstood: a common misconception is that a work must be registered with the Copyright Office or published with a copyright notice in order to merit protection. For works created after January 1, 1978, no publication or registration is required to secure a copyright. Yet there remain certain definite advantages to both registration and publication with notice.

The effect of publication. Publication is no longer the key to obtaining statutory copyright, as it was under prior Copyright Acts. However, publication in and of itself, even without copyright notice, remains an important event for copyright owners: for many types of works, such as anonymous or pseudonymous works and works made for hire, the date of publication sets the duration of copyright. Publication can also affect certain limitations on the exclusive rights of the copyright holder (as for instance under new legislation by opening some types of works to unauthorized reproduction for the handicapped), and can provide an important and effective vehicle for giving notice of the reservation of copyright. Within the meaning of the Copyright Act, "publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending; the offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

Before 1978, copyright was generally secured by the act of publication with notice of the copyright claim (assuming compliance with a variety of other conditions). Works in the public domain on January 1, 1978 (for example, works published without satisfying all conditions for securing statutory copyright under the 1909 Copyright Act) remain in the public domain under the current act. Statutory copyright could also be secured before 1978 by the act of registration in the case of certain unpublished works and works eligible for "ad interim" copyright.




The Importance of Giving Notice: The Meaning of "©"

 For works first published on and after March 1, 1989, use of the copyright notice is no longer requisite to the creation of an enforceable copyright. Yet use of the notice does continue to confer important benefits, and it is highly recommended for both published and unpublished works. (Before March 1, 1989, the use of the notice was mandatory on all published works if copyright was to be enforced. Thus any work first published before that date must bear a notice or risk loss of copyright protection.)

Use of the notice informs the public that the work is protected by copyright and that the owner cares about maintaining his or her rights; because it identifies the owner; and because it gives the year of the work's first publication. Use of the notice also deprives infringers of the availability of the "innocent infringement" defense. That is, if the work carries the correct statutory notice (see below) an accused infringer is not allowed to claim that he or she did not realize the work was protected. (A successful innocent infringement claim may result in a reduction in damages that the copyright owner would otherwise receive.) It also a good idea to include the notice in unpublished works, as a safeguard against unintentional publication without notice.

Use and form of the Notice. For printed or visually perceptible works, the copyright notice usually consists of three parts: the © symbol (and/or the word "Copyright" or its abbreviation "Copr."), the year of the first publication of the work, and the name of the copyright owner. For phonorecords or sound recordings, the © symbol is replaced by the "Circle P" symbols. (Note: anyone knowing the ASCII / ISO code for the "Circle P" is encouraged to share it with the editor of this page.) Sound recordings are defined by the Act as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." Permission from or registration with the Copyright Office is not required for use of the copyright notice or of the © or "Circle P" symbols.

Position of the Notice. The notice should be affixed to copies or phonorecords of the work "in such a manner and in such a location as to give reasonable notice of the claim of copyright." For printed works, the notice traditionally appears on or near the title page. On phonorecords the notice may appear on the surface of the phonorecord or on the phonorecord label or container, provided that the manner of placement and location give reasonable notice of the claim. All three elements of the notice should ordinarily appear together, on both copies and phonorecords. The Copyright Office has issued regulations concerning the form and position of the copyright notice for works which are to be registered. These regulations are posted in the Code of Federal Regulations.

Omission of the Notice. For works created on or after March 1, 1989, the omission of the Copyright notice does not affect the protectability of the work. It may, however, affect the recovery of damages in an infringement lawsuit. For works created before that date and after January 1, 1978, omitted or defective notice does not automatically destroy copyright -- protection may be maintained if registration for the work has been made before or is made within 5 years after the publication without notice and a reasonable effort is made to add the notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered. For works published on or after January 1, 1978, and before March 1, 1989, the Copyright Act provides procedures for correcting errors and omissions in the copyright notice.




The Duration of Copyright: How Long Does it Last?

 The duration of copyright depends upon the date upon which the work it protects was created, published, or in some cases registered.

Works originally created on or after January 1, 1978. A work created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation for the life of its author plus a term of 50 years following the author's death. In the case of a joint work not prepared for hire, the term lasts 50 years after the death of the last surviving author. Works made for hire and anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records) are protected for 75 years from publication or 100 years from creation, whichever is shorter.

Works originally created and not published or registered before January 1, 1978. Works that were created but not published or registered in the Copyright Office before January 1, 1978, have been granted protection by the statute and are now given Federal copyright protection for the same term as works created after that date. The Copyright Act provides that in no case will the term of copyright for works in this category expire before December 31, 2002, and that for works in this category published on or before December 31, 2002, the term of copyright will not expire before December 31, 2027.

Works Originally Created and Published or Registered Before January 1, 1978. For works published or registered before January 1, 1978, copyright protection began either on the publication date or, if the work was registered in unpublished form, on the registration date. Copyrights were granted originally for a 28-year term, with a single renewal of an additional 28 years available if requested within the final year of the first term. The Copyright Act has now extended the renewal term to 47 years for copyrights subsisting on January 1, 1978. This makes these works eligible for a total term of protection of 75 years. On June 26, 1992, the Copyright Act was amended to extend automatically the term of copyrights secured from January 1, 1964, through December 31, 1977 to the further term of 47 years. For affected works there is no need to make the renewal filing in order to extend the original 28-year copyright term to the full 75 years. However, some benefits accrue to making a renewal registration during the 28th year of the original term.




What is Copyright Infringement?

 Copyright infringement occurs when someone violates any of the exclusive rights of the copyright owner. Thus generally infringement takes the form of unauthorized copying, or the adaptation, distribution, performance, or display of a work. There is no requirement that the copying or other unauthorized activity be intentional; even accidental or subconscious copying may be found to be infringement.

Specifically, proscribed acts include (a) the reproduction of a protected work in copies or phonorecords; (b) the preparation of derivative works based upon the copyrighted work; (c) the distribution of copies or phonorecords of the work, either by sale or other transfer, including rental, lease, or lending; (d) public performance of the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; (e) public display of the work, 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; or (f) authorization of others to do any of the foregoing. Protection from infringement is available to both published and unpublished works, largely on a basis independent of registration.

Fair Use. The doctrine of "fair use" has been set aside as an exception to infringement. There is no clear definition of what fair use is; the copyright law provides a number of factors to be used in determining the fairness of any given use. Basically, the courts are left to balance arguments for each side and to attempt to reach a just result. The first of these factors is the character of the use, including the commercial or nonprofit nature of the use. The second is the nature of the copyrighted work itself, and the type of use traditionally given it -- it is customary in some situations, for example, to use portions of a work for critical reviews, and it is also customary to let people keep unpublished works confidential. Another factor is the proportion of the work used -- whether, for example, the "essence" of a work has been taken, or only incidental features. A final factor is the effect of the use on the market for the copyrighted work -- if the value of the work is substantially diminished, the chances of a finding of fair use are diminished also.




Transfer of Copyright

 Any or all of the rights of copyright may be transferred, in whole or part. to persons other than the author. Generally, no transfer of exclusive rights is valid unless it is made in writing and signed by the owner of the rights conveyed. Transfer of a nonexclusive right requires no written agreement. Copyrights may also be conveyed by operation of law -- for example, by being bequeathed in a will or passing as personal property under the applicable (state) laws of intestate succession. Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property, as well as contractual terms or the conduct of business.

Transfers of copyright are normally made by contract. Contracts transferring ownership of copyright may and generally should be recorded in the Copyright Office, as a means of giving public notice of the change. Although recordation is not required to validate a transfer between the parties, it does provide certain legal advantages and may be required in order to validate the transfer as against third parties.

Termination of Transfers. Under previous law the copyright in a work reverted to the author, if he or she was living (or if the author was not living, to other specified beneficiaries), upon termination of the original 28 year copyright term, provided a renewal claim was registered in the 28th year. The present law drops the renewal feature except for works already in the first term of statutory protection when the present law took effect, and instead permits termination of a grant of rights after 35 years under certain conditions by serving written notice on the transferee. For works already under statutory copyright protection before 1978, the law now provides a similar right of termination covering the newly added years that extended the former maximum term of the copyright from 56 to 75 years. (The copyright in works eligible for renewal on or after June 26, 1992, will vest in the name of the renewal claimant on the effective date of any renewal registration made during the 28th year of the original term. Otherwise, the renewal copyright will vest in the party entitled to claim renewal as of December 31st of the 28th year.)




Registration

 Copyright registration is a legal formality intended to make public a record of the basic facts of a particular copyright. And even though it is not generally a requirement for protection, the law provides several inducements to encourage registration. Among these are: (a) registration is a prerequisite to filing an infringement lawsuit; (b) a registration, if made either before or within 5 years of publication, establishes prima facie evidence of the validity of the copyright and of the facts stated in the certificate, including ownership; (c) a registration made within 3 months of publication or prior to an infringement of the work makes statutory damages and attorney's fees available to the copyright owner in legal actions -- otherwise, only an award of actual damages and profits is available; and (d) registration allows the owner of the copyright to register with the U.S. Customs Service for protection against the importation of infringing copies.

Registration may be made at any time during the life of the copyright. When a work has been registered in unpublished form and is later published, it is not necessary to make another registration after the work becomes published -- although the copyright owner may register the published edition also, if desired.

Registration Procedures. Registration requires the submission of a properly completed application form, a nonrefundable filing fee (currently $20 per registration), and a nonreturnable deposit of the work registered. Deposit requirements vary with the type and status of the work. In general, for unpublished works and works first published outside the United States, one complete copy or phonorecord must be deposited. For works first published in the United States, two complete copies should be submitted. But special deposit requirements exist for many types of works. For example, if the work is a computer program (whether published or unpublished), it is necessary to deposit one visually perceptible copy in source code of the first and last 25 pages of the program (if shorter than 50 pages, then the entire program). If the work is in a CD-ROM format, the deposit requirement is one complete copy of the material, that is, the CD-ROM, the operating software, and any manual(s) accompanying it. In the case of works reproduced in three-dimensional copies, identifying material such as photographs or drawings is ordinarily required.

Renewals require submission of a completed renewal form and a nonrefundable filing fee (also currently $20).

An unpublished work may be registered as a "collection," on one application and one fee, if (1) the elements of the collection are assembled in an orderly form; (2) the combined elements bear a single title identifying the collection as a whole, (3) the copyright claimant in all elements and in the collection as a whole is the same, and (4) if all of the elements are by the same author -- or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element.




Mandatory Deposit for Works Published in the United States

 Although copyright registration is not required, the Congress has enacted a mandatory deposit requirement for works published in the United States. In general, the owner of copyright or the owner of the exclusive right of publication in the work has a legal obligation to deposit in the Copyright Office, within 3 months of publication in the United States, 2 copies of the published work for the use of the Library of Congress. Failure to make the deposit can result in fines and other penalties, but does not affect copyright protection. Certain categories of works are exempt from this requirement, and the obligation is reduced for others.

For works published in the United States, a single deposit can be made to satisfy both the deposit requirements for the Library and registration requirements. In order to have this dual effect, the copies or phonorecords must be accompanied by the prescribed application and filing fee.




International Copyright Protection

 There is no such thing as an "international copyright" that will automatically protect an author's creations throughout the entire world. Protection against unauthorized use in a particular country depends upon the national laws of that country. However, most countries do offer protection to foreign works, at least under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.

The United States belongs to both global multilateral copyright treaties: the Universal Copyright Convention (UCC) and the Berne Convention for the Protection of Literary and Artistic Works. The United States was a founding member of the UCC, which came into force on September 16, 1955. Generally, a work by a national or domiciliary of a country that is a member of the UCC or a work first published in a UCC country may claim protection in any UCC country under the UCC. If the work bears the notice of copyright in the form and position specified by the UCC, this notice will satisfy and substitute for any other formalities a UCC member country would otherwise impose as a condition of copyright. A UCC notice should consist of the © symbol accompanied by the name of the copyright proprietor and the year of first publication of the work.

By joining the Berne Convention on March 1, 1989, the United States gained protection for its authors in all member nations of the Berne Union with which the United States formerly had either no copyright relations or had bilateral treaty arrangements. Members of the Berne Union have agreed to a certain minimum level of copyright protection and have agreed to treat nationals of other member countries like their own nationals for purposes of copyright. A work first published in the United States or another Berne Union country (or first published in a non-Berne country and published within 30 days thereafter in a Berne Union country) is eligible for protection in all Berne member countries. There are no special requirements.

An author who wishes protection for his or her work in a particular country should investigate the extent of protection afforded foreign works in that country. If possible, this should be done before the work is published anywhere, as protection may often depend on the facts existing at the time of first publication. If the country in which protection is sought is a party to one of the international copyright conventions, the work may generally be protected by complying with the conditions of the convention. Yet even if the work cannot be brought under an international convention, protection under the specific provisions of the country's national laws may still be possible. Some countries, however, offer little or no copyright protection for foreign works.




Sources for this document include the United States Copyright Office circular, "Copyright Basics."

The Editor

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