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Archived updates for Tuesday, June 27, 2006

General Information About Copyright

Basic information about copyright protection is available from the U.S. Copyright Office in its "Copyright Basics circular" at http://www.copyright.gov/circs/circ1.html. Other circulars from the U.S. Copyright Office are listed at http://www.copyright.gov/circs/.

As noted in these brochures, copyright is secured automatically when the work is "created," or fixed in a copy for the first time. However, there are some additional advantages associated with using the proper notice copyright discussed at http://www.copyright.gov/circs/circ1.html#noc. For example, proper copyright notice informs the public that the work is protected by copyright and identifies the copyright owner. Furthermore, in the event that a work is infringed, if the work carries a proper notice, the court will not give any weight to a defendant's interposition of an innocent infringement defense-that is, that he or she did not realize that the work was protected. An innocent infringement defense may result in a reduction in damages that the copyright owner would otherwise receive.

Several additional advantages are also available for copyright owners who take the further step of registering their works as discussed at http://www.copyright.gov/circs/circ1.html#cr, including
  • If registration is made within 3 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. These latter type damages can be difficult to prove.
  • 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. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import.

Although there is no such thing as an "international copyright" that will automatically protect an author's writings throughout the world, most countries offer protection to foreign works under certain conditions that have been greatly simplified by certain international copyright treaties and conventions. Further general information about copyright notice is available at http://www.copyright.gov/circs/circ03.html while general information copyright registration is available at http://www.copyright.gov/circs/circ03.html. With regard to copyright notice, the Copyright Office has issued regulations concerning the form and position of the copyright notice in the Volume 37 of the Code of Federal Regulations at Section 201.20. Here are some of the highlights that may be of interest to many emploees and employes.

Form of Copyright Notice for Visually Perceptible Copies

The form of the copyright notice used for "visually perceptible" copies - that is, those that can be seen or read, either directly (such as books) or with the aid of a machine (such as films)-is different from the form used for phonorecords of sound recordings (such as compact disks or cassettes). The notice for visually perceptible copies such as engineering drawings, marketing literature, packaging, inserts, etc., should contain all the following three elements:
The symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr.";
The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner:

Example: © 2006 Owner Name

Unpublished Works

The copyright notice has never been required on unpublished works. However, because the dividing line between a preliminary distribution and actual publication is sometimes difficult to determine, the copyright owner may wish to place a copyright notice on copies or phonorecords that leave his or her control to indicate that rights are claimed. An appropriate notice for an unpublished work might be:

Example: Unpublished Work © 2006 Owner Name

For confidential or proprietary materials, a confidentiality notice may also be provided, such as

Example: Confidential Unpublished Work © 2006 Owner Name

Position of Notice

The copyright notice should be affixed to copies in such a way as to "give reasonable notice of the claim of copyright." The three elements of the notice should ordinarily appear together on the copies. For works published in book form, such as marketing brochures, the notice should appear on either

  • Title page,
  • Page immediately following the title page,
  • Either side of the front or back cover, or
  • First or last page of the main body of the work

For single-leaf works, such as many engineering drawings, the notice may appear on the front or back. In fact, most large organizations include the copyright notice with a confidentiality warning in the title block of their internal drawings.

Registration Procedures

Registration of an original work is a fairly simple and inexpensive procedure which we can handle for our clients. To register a work, the owner or their representative must send the following three elements in the same envelope or package to the Library of Congress, Copyright Office in Washington DC:

  1. A properly completed application form from www.copyright.gov/forms,
  2. A nonrefundable filing fee of $30 for each application, and
  3. At least one nonreturnable deposit of the work being registered.

Useful Articles Not Protectable by Copyright

As discussed at http://www.copyright.gov/fls/fl103.html designs for useful articles, such as vehicular bodies, wearing apparel, household appliances, and the like are not protected by copyright. However, the design of a useful article is subject to copyright protection to the degree that its pictorial, graphic, or sculptural features can be identified as existing independently of the utilitarian object in which they are embodied.

Keep in mind the line between uncopyrightable works of industrial design and copyrightable works of applied art is not always clear. A two-dimensional painting, drawing, or other graphic work is still identifiable when it is printed on or applied to useful articles such as textile fabrics, wallpaper, containers, and the like. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the copyright law does not afford it protection. The designs of some useful objects may be entitled to protection under design patent law if the design is new and unobvious.

Fair Use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. However, this right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." This doctrine has been codified in section 107 of the copyright law which contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research.

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

Works Made for Hire

Although the general rule is that the person who creates a work is the author and owner of that work, there is an exception to that principle: the copyright law defines a category of works called “works made for hire.” If a work is “made for hire,” the employer, and not the employee, is considered the author. The employer may be a firm, an organization, or an individual.

If a work is created by an employee, generally the work would be considered a work made for hire. However, if a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

It is therefore important to have written work for hire agreements from all contractors performing creative work for your organization.

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