Author: Janet Gershen-Siegel

Check Out A Crash Course in Copyright Law, Part 2

Want to learn more about copyright law?

How about infringement?

We are artists and that means we are copyright holders, even if we never assert our rights and never file with the copyright office. According to American copyright law, you own it if you made it. You don’t have to mail it yourself.

But to defend a case, in the US, you’ll need to register your work.

Infringement

However, I will only talk about American law. If you assert copyright in another country, the law will most likely differ. Furthermore, if you have any questions, ask me in the comments section. I will try to research and answer you in a timely fashion.

Or ask a copyright attorney. This area, like many areas of the law, has nuances and there can be changes. This blog is no substitute for good advice from an experienced lawyer. If you think you need to protect your rights, then do so properly. And that means hiring an attorney.

The United States Code

According to Title 17 of the United States Code:

§ 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).

As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

But what the heck does that all mean?

The American Bar Association explains it better. It publishes a Young Lawyers series intended to help newly minted lawyers understand the nuances of complicated sections of practice. So the ABA explains:

An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”

Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).  If the defendant rebuts the plaintiff’s prima facie evidence, then the above elements of valid copyright ownership become essential to the plaintiff’s case.

So what is the ABA is saying? Registration with the US Copyright office isn’t necessary to successfully bring an infringement claim. But it’s awfully helpful.

If you think your work might be infringed upon, if you feel it is a danger and you are concerned about it, then get some peace of mind and register it with the US Copyright Office.

Next up? Exceptions!

A Crash Course in Copyright

It’s time for a crash course in copyright law. Don’t worry; no one is going to make you practice law.

Seriously, you’re good.

Me, on the other hand? I’m a retired lawyer, admitted to the New York state bar, 1986. I never worked in the copyright field. However, I have read plenty about it, and of course I have my own legal training and experiences to fall back on.

If you have questions, I will try to answer them. Or contact a copyright attorney if you know one, and ask! Your questions won’t offend me.

Disclaimer

Do not infer or imply representation. If you’ve got a copyright issue, and you’re defending, or you think you should bring a lawsuit, I urge you to get legal representation as soon as possible.

American Copyright Law

For the purposes of these blog posts, I will only look at American law. The law differs outside the United States, it will be different. Copyright law is Federal, so jurisdiction rests with the Federal courts. It is a civil matter; no one goes to jail for copyright infringement.

Copyright Search

The United States Copyright Office exists as a part of the Library of Congress, founded in 1870. Want to find out if something has a copyright? Click the search page for the copyright office and be sure to select Other Search Options. If you think your search will pull up a lot of records, select 100 records per page from the pull-down menu to the left.

Make sure to be as specific as possible, but you might need to go less specific in order to be truly diligent. For example, a search for Sally Field’s character, Sister Bertrille, might not bring up anything. A search for Bertrille might give you something, but a better search would be for the television program the character comes from, The Flying Nun.

Here’s the copyright for the theme song to that series.

But most people could guess that Field’s role or at least the series has or had some form of copyright. But what, exactly, is copyright?

The Elements of Copyright

According to the US Copyright Office,

Copyright is a form of protection provided by the laws of the United States (title 17, U.S.Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

Per Section 106 of the Copyright Act of 1967, a copyright holder can:

• reproduce the work in copies or phonorecords
• prepare derivative works based upon the work
• distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
• perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
• 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
• perform the work publicly (in the case of sound recordings) by means of a digital audio transmission

Hence copyright holders have any number of rights in their own works. Can they allow others to use them? Absolutely! We call that a license.

When do copyrights expire?

Not surprisingly, the US Copyright Office has something to say about that.

Works Created on or after January 1, 1978 The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author’s life plus an additional 70 years.

and …

Works in Existence but Not Published or Copyrighted on January 1, 1978 The law automatically gives federal copyright protection to works that were created but neither published nor registered before January 1, 1978. The duration of copyright in these works is generally computed the same way as for works created on or after January 1, 1978: life plus 70 years or 95 or 120 years, depending on the nature of authorship. However, all works in this category are guaranteed at least 25 years of statutory protection. The law specifies that in no case would copyright in a work in this category have expired before December 31, 2002. In addition, if a work in this category was published before that date, the term extends another 45 years, through the end of 2047.

What does this mean? Well, the short answer is that you generally do better to publish your work! After all, you can’t expect anyone to guard against copying it if they don’t know it exists.

The other important takeaway: you don’t need to assert copyright or mail it yourself or anything like that. Does it help to register your work? Absolutely! And you’ll need it to defend a lawsuit.

If you ever doubt have concerns, do the legwork (or have your lawyer do so), and register your work.

More of the crash course later …