Copyright

Copyright is a form of intellectual property law, grounded in the U.S. Constitution and the Copyright Act of 1976, that protects original works of authorship fixed in a tangible medium of expression. A copyright is created at the moment a work is made into a fixed form, whether it is subsequently made public (published) or not.

Copyright law effectively gives copyright owners a legal monopoly on the use of their work. They can decide if and when to obtain commercial gain from their work by licensing any or all of these rights on an exclusive or non-exclusive basis:

• Reproduction: the right to make copies of a protected work
• Distribution: the right to sell or otherwise distribute copies to the public
• Display: the right to display the work publicly
• Derivative works: the right to create adaptations of protected work

In the case of works of fine art, the Copyright Act also grants the author the right to prevent someone from destroying a protected work.

What does copyright protect?

Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as paintings, photography, poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. It secures for the creator or author the exclusive right to control who can make copies, or make works derived from the original work. If an author creates something that fits the definition of a creative work, s/he may control who can make copies of it and how they make copies, with some exceptions. An author may also sell or license these rights. If an author does work for hire, the hirer may buy any or some of these rights in advance.

Facts and ideas cannot be copyrighted, only expressions of creative effort.

Does a work have to be published to be protected?

Publication is not necessary for copyright protection.

When is a work protected?

Your work is under copyright protection the moment it is created in a tangible form that it is perceptible either directly or with the aid of a machine or device. For authors, it is created when they write or type the words out. For photographers, it is created at the click of the shutter. For artists, it is created when the paint is applied to the canvas.

Does a work have to be registered with the Copyright Office to be protected?

No, but it is strongly recommended. Copyright exists from the moment the work is created. Registration is voluntary but offers benefits. An author must register their work before bringing a lawsuit for infringement of a U.S. work. The author may seek statutory damages if the alleged infringment occurred after the work was registered, or within 90 days of being published for the first time, provided that the owner registers the work before the 90 days are up.

Does copyright hold good in other countries?

The United States has copyright relations with most (but not all) countries throughout the world in the form of treaties and, as a result of these agreements, we honor each other’s citizens’ copyrights.

How can I find out who owns a copyright?

You can search the register of copyrighted works either online (for records from January 1, 1978); or you can pay for a manual search; or you can conduct a search in person at the Copyright Office in Washington, DC.

What is copyright infringement?

As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law.

What is the penalty for infringing copyright?

Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney’s fees incurred by the copyright owner to enforce his or her rights.

How much of someone else’s work can I use without getting permission?

Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports.  There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a visual work. Whether a particular use qualifies as fair use depends on all the circumstances.

Is it legal to download works from the Internet?

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner’s exclusive rights of reproduction and/or distribution. Since the files distributed over the Internet, including social and peer-to-peer networks, are primarily copyrighted works, there is a high risk of liability in downloading and using such material.

How can I avoid the risk of copyright infringement?

There are many authorized services on the Internet that allow consumers to purchase copyrighted works online, whether music, e-books, or motion pictures. By purchasing works through authorized services, consumers avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware.

How Long Does Copyright Protection Last?

For works published after 1977, the copyright lasts for the life of the creator plus 70 years.

The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. If the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published. All works published in the United States before 1923 are in the public domain - that is, not protected by copyright law. Works published after 1922 but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. If the author died over 70 years ago and the work was never published, copyright terminated on December 31, 2002. If the author died over 70 years ago, and a previously unpublished work was published before December 31, 2002, the copyright will last until December 31, 2047.

How is a copyright different from a patent or a trademark?

Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

Transfer of a copyright owner’s rights

When a copyright owner wishes to commercially exploit the work covered by the copyright, the owner typically transfers one or more of these rights to the person or entity who will be responsible for getting the work to market, such as a book or software publisher.

Ways copyright ownership may be transferred

• Assignment or license: a transfer of ownership interest in the copyright; a license is a grant of only some of the rights comprising copyright.
• Transfer upon death: if an owner of copyright dies with a valid will, the copyright will be transferred to a designated beneficiary; if an owner of copyright dies without a will, transfer of ownership will occur according to the rules of intestate succession.
• Involuntary transfer: under certain circumstances (for example, bankruptcy, mortgage foreclosure, divorce), a court can order the transfer of copyright.

When transferring copyright, it is common for a copyright owner to place some limitations on the rights being transferred. For example, the owner may limit the transfer to a specific period of time, allow the right to be exercised only in a specific part of the country or world, or require that the right be exercised only through certain media, such as hardcover books, audiotapes, magazines, or computers. When only some of the rights associated with the copyright are transferred, it is known as a “license”.

Transfers of copyright ownership are unique in one respect: authors or their heirs have the right to terminate any transfer of copyright ownership 35 to 40 years after it is made.

When someone other than the creator owns copyright

There are exceptions to the general rule that the creator of a work owns the copyright to the work:

• Work for Employer: if an employee creates a work in the course of his or her employment, the employer owns the copyright.
• Work “Made for Hire”: if an independent contractor creates a work which qualifies as a work “made for hire” then the hiring person or firm owns the copyright, this involves a signed agreement where the independent contractor either transfers the copyright or agrees the person or firm owns it.
• Works Sold to Another: if the creator sells the entire copyright to another person or business, that buyer becomes the copyright owner.

US Copyright Office

The US Copyright Office publishes a comprehensive set of information and guidance on its website and in various publications, including:

• Copyright Basics (a longer version of this FAQ)
• Glossary of terms
• Copyright registration
• News & updates
• Contact information
• Hours of service & location

Is this the only place I can go to register a copyright?

Yes. Although copyright application forms may be available in public libraries and some reference books, the U.S. Copyright Office is the only office that can accept applications and issue registrations.

Visual Connections accepts no liability for any inaccuracies in fact or interpretation in the information provided here, which does not constitute legal advice.