Just what is a copyright? Copyrights protect “original works of authorship fixed in any tangible medium of expression.”
Examples of copyrightable works are books, musical compositions, art, movies, computer programs and Web sites. A collection of thoughts or spoken words, although they may be original, are not copyrightable until they are set forth in a tangible medium of expression, such as a writing or a recording.
Copyrights do not cover ideas. Rather, it is the expression of an idea in the author's unique way that is protectable.
This idea/expression dichotomy is at the heart of copyright law. An example to illustrate what it means is that the idea of a word processor software program is not protectable by copyright.
Instead, copyright covers the precise expression of the word processor software program in its software code. Consequently, many different word processing programs can be protected by copyright.
Copyright rights
The owner of a copyright possesses several exclusive rights, including the rights to:
• Make copies of the work (the reproduction right).
• Prepare derivative works based on the original work (the adaptation right).
• Sell copies of the work to the public (the distribution right).
• Display or perform the work publicly.
Violation of any of a copyright owner's exclusive rights constitutes copyright infringement. Each of the rights can be sold or licensed separately.
For example, the owner of a computer program can grant exclusive licenses for reproduction and for distribution to different companies while retaining the exclusive right to make derivative works.
The only time you can use another's work without permission
Fair use of another's work includes using the material for criticism, comment, news reporting, teaching or research. To determine whether a particular use qualifies as a “fair use,” the following four factors are analyzed:
• The nature of the use (commercial or not-for-profit).
• The nature of the work (whether highly creative or very factual).
• The amount and substantiality of the portions taken from the copyrighted work.
• The effect on the commercial market for the copyrighted work.
A finding of “fair use” means the use is immune to a claim of copyright infringement and its attendant damages. Unfortunately, the fair use defense is not always easy to apply because of the subjective nature of the four factor's determination, and their balancing.
Who owns the copyright?
The rights of a copyright belong to the “author or authors” of the work. However, when an employee “authors” a copyrightable work, her employer automatically owns the copyright, with no written assignment required.
An extremely important exception to this rule, which is unfortunately very frequently overlooked, is that “contractors” or “consultants,” as distinct from “employees,” own the copyright in works they create for others, even if they have been paid for the work, unless a written copyright assignment is signed. Because companies frequently hire non-employee consultants and contractors to create copyrightable works for them, such as advertising materials and Web sites, failing to obtain the copyright from the contractors can be disastrous.
If the copyright in a work is owned by the contractor, the company that hired the contractor does not have the right to change the work in any way or to create revisions and new versions of the work, because such revisions create a “derivative work.” Instead, the company would have only a non-exclusive license to use the work, meaning that that the contractor could license the use of the same work to others, even to the company's competitors.
Copyright damages are unique
Copyright damages are immensely useful, both for compensation and as a tool to rapidly stop, or to deter in the first instance, an infringement. A copyright infringer is liable for either the copyright owner's actual damages and any additional profits of the infringer or statutory damages. The copyright owner gets to choose which damages he or she would like to receive.
The law provides for statutory damages because actual damages and profits can often be difficult to prove. Statutory damages need not be proven, the court awards them in its discretion. The major limitation on the right to obtain statutory damages is that they are available only for infringements that began after the copyright owner registered the copyright with the U.S. Copyright Office. Consequently, early registration is critically important.
Statutory damages of up to $150,000 per infringement can be awarded by the court. With multiple infringements, statutory damages can be enormous.
Moreover, courts can award the copyright owner its costs and attorneys' fees. The threat of such draconian remedies can be used very effectively to stop, and to deter, infringement of copyrightable works.
Jacob C. Reinbolt is a partner with Procopio, Cory, Hargreaves & Savitch LLP. His practice emphasizes computer law, intellectual property, Internet law, licensing, entertainment, publishing, the arts, advertising, securities law, franchising, corporate law and mergers and acquisitions.
Examples of copyrightable works are books, musical compositions, art, movies, computer programs and Web sites. A collection of thoughts or spoken words, although they may be original, are not copyrightable until they are set forth in a tangible medium of expression, such as a writing or a recording.
Copyrights do not cover ideas. Rather, it is the expression of an idea in the author's unique way that is protectable.
This idea/expression dichotomy is at the heart of copyright law. An example to illustrate what it means is that the idea of a word processor software program is not protectable by copyright.
Instead, copyright covers the precise expression of the word processor software program in its software code. Consequently, many different word processing programs can be protected by copyright.
Copyright rights
The owner of a copyright possesses several exclusive rights, including the rights to:
• Make copies of the work (the reproduction right).
• Prepare derivative works based on the original work (the adaptation right).
• Sell copies of the work to the public (the distribution right).
• Display or perform the work publicly.
Violation of any of a copyright owner's exclusive rights constitutes copyright infringement. Each of the rights can be sold or licensed separately.
For example, the owner of a computer program can grant exclusive licenses for reproduction and for distribution to different companies while retaining the exclusive right to make derivative works.
The only time you can use another's work without permission
Fair use of another's work includes using the material for criticism, comment, news reporting, teaching or research. To determine whether a particular use qualifies as a “fair use,” the following four factors are analyzed:
• The nature of the use (commercial or not-for-profit).
• The nature of the work (whether highly creative or very factual).
• The amount and substantiality of the portions taken from the copyrighted work.
• The effect on the commercial market for the copyrighted work.
A finding of “fair use” means the use is immune to a claim of copyright infringement and its attendant damages. Unfortunately, the fair use defense is not always easy to apply because of the subjective nature of the four factor's determination, and their balancing.
Who owns the copyright?
The rights of a copyright belong to the “author or authors” of the work. However, when an employee “authors” a copyrightable work, her employer automatically owns the copyright, with no written assignment required.
An extremely important exception to this rule, which is unfortunately very frequently overlooked, is that “contractors” or “consultants,” as distinct from “employees,” own the copyright in works they create for others, even if they have been paid for the work, unless a written copyright assignment is signed. Because companies frequently hire non-employee consultants and contractors to create copyrightable works for them, such as advertising materials and Web sites, failing to obtain the copyright from the contractors can be disastrous.
If the copyright in a work is owned by the contractor, the company that hired the contractor does not have the right to change the work in any way or to create revisions and new versions of the work, because such revisions create a “derivative work.” Instead, the company would have only a non-exclusive license to use the work, meaning that that the contractor could license the use of the same work to others, even to the company's competitors.
Copyright damages are unique
Copyright damages are immensely useful, both for compensation and as a tool to rapidly stop, or to deter in the first instance, an infringement. A copyright infringer is liable for either the copyright owner's actual damages and any additional profits of the infringer or statutory damages. The copyright owner gets to choose which damages he or she would like to receive.
The law provides for statutory damages because actual damages and profits can often be difficult to prove. Statutory damages need not be proven, the court awards them in its discretion. The major limitation on the right to obtain statutory damages is that they are available only for infringements that began after the copyright owner registered the copyright with the U.S. Copyright Office. Consequently, early registration is critically important.
Statutory damages of up to $150,000 per infringement can be awarded by the court. With multiple infringements, statutory damages can be enormous.
Moreover, courts can award the copyright owner its costs and attorneys' fees. The threat of such draconian remedies can be used very effectively to stop, and to deter, infringement of copyrightable works.
Jacob C. Reinbolt is a partner with Procopio, Cory, Hargreaves & Savitch LLP. His practice emphasizes computer law, intellectual property, Internet law, licensing, entertainment, publishing, the arts, advertising, securities law, franchising, corporate law and mergers and acquisitions.