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Law Offices
KELLY LOWRY & KELLEY, LLP
PATENT, TRADEMARK AND COPYRIGHT CAUSES

TEL: (818) 347-7900
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Copyright Protection

Copyright is a form of protection provided by the laws of the United States 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 This protection is available to both published and unpublished works. The Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• 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 copyrighted 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; and
  
  
• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

In addition, certain authors of works of visual art have the rights of attribution and integrity.

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. In some cases, limitations are specified exemptions from copyright liability. One major limitation is 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.

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, the employer and not the employee is considered to be the author. The copyright law defines a "work made for hire" as:

• work prepared by an employee within the scope of his or her employment; or
  
  
• work specially ordered or commissioned for use as:
  
  
• contribution to a collective work
  
  
• part of a motion picture or other audiovisual work
  
  
• translation
  
  
• supplementary work
  
  
• compilation
  
  
• instructional text
  
  
• test
  
  
• answer material for a test
  
  
• atlas

The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

Minors may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors.

Copyright and National Original of the Work

Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author.

Published works are eligible for copyright protection in the United States if any one of the following conditions is met:

• on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person wherever that person may be domiciled (a treaty party is a country or intergovernmental organization other than the United States that is a party to an international agreement); or
  
  
• the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. For purposes of this condition, a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be; or
  
  
• the work is a sound recording that was first fixed in a treaty party; or
  
  
• the work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
  
  
• the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
  
  
• the work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA); or
  
  
• the work comes within the scope of a Presidential proclamation.

Works That Are Protected

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

• 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

These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

What Is Not Protected

Several categories of material are generally not eligible for federal copyright protection. These include, 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); and
  
  
• work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

International Copyright Protection

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

Who May File An Application

The following persons are legally entitled to submit an application form:

• The author. This is either the person who actually created the work or, if the work was made for hire, the employer or other person for whom the work was prepared.
  
  
• The copyright claimant. The copyright claimant is defined in Copyright Office regulations as either the author of the work or a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author. This category includes a person or organization who has obtained by contract the right to claim legal title to the copyright in an application for copyright registration.
  
  
• The owner of exclusive right(s). Under the law, any of the exclusive rights that make up a copyright and any subdivision of them can be transferred and owned separately, even though the transfer may be limited in time or place of effect. The term "copyright owner" with respect to any one of the exclusive rights contained in a copyright refers to the owner of that particular right. Any owner of an exclusive right may apply for registration of a claim in the work.
  
  
• The duly authorized agent of such author, other copyright claimant, or owner of exclusive right(s). Any person authorized to act on behalf of the author, other copyright claimant, or owner of exclusive rights may apply for registration.