Lee Palmateer is an experienced Albany intellectual property attorney and provides full copyright legal counsel to help preserve, protect and commercialize your original works of authorship, including:
- Copyright Registration
- Copyright Licenses and Assignments
- Copyright Enforcement and litigation
- Copyright Work Made for Hire Agreements
- Publishing Contracts
- Independent contractor agreements
What are Copyrights?
Copyrights protect “original works of authorship” that are fixed in a tangible form of expression, and generally give the copyright owner the exclusive right to:
- reproduce the work;
- prepare derivative works based upon the work;
- distribute copies of the work to the public;
- perform the work publicly; and
- display the work publicly.
These rights, however, are subject to certain limitations and exemptions from copyright liability, including the doctrine of “fair use,” and “compulsory licenses.”
How to Secure Copyrights
Copyrights are secured automatically when the work is created – i.e., when it is fixed in a copy or phono-record for the first time. No publication or registration is required to secure copyrights. However, registration provides certain very important advantages and is a jurisdictional prerequisite to a copyright infringement lawsuit for works of U.S. origin.
Copyrights may be transferred, but the transfer must be in writing and signed by the copyright owner or a duly authorized agent. Transfers on a nonexclusive basis do not require a written agreement. Copyrights may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
Who Can Claim Copyrights?
Copyrights in a work of authorship immediately become the property of the author or authors who created the work. Only the author or those deriving their rights through the author can rightfully claim copyrights.
In the case of “works made for hire,” the employer is considered to be the author. A “work made for hire” is:
- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Notice of Copyrights
The use of a copyright notice is no longer required under U.S. law, although it is often beneficial because it informs the public that the work is protected by copyright and helps defeat a defense of innocent infringement in litigation. The notice for visually perceptible copies should contain: the symbol © (the letter C in a circle), or the word “Copyrights,” or the abbreviation “Copr.”; the year of first publication of the work; and the name of the copyright owner. Example: © 2008JohnDoe.
Copyright registration is a public record of the basic facts of a particular copyright. Although registration is not a requirement for copyright protection, the copyright law provides several advantages to encourage copyright owners register. Among these advantages are the following:
- Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
- If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
- If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
- Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.
What is Not Protected by Copyright?
Several categories of material are generally not eligible for federal copyright protection, including among others:
- Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
- 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).