Copyrights are designed
to protect artistic works, i.e., works that have no utility. Musical scores,
sound recordings, poems, books, paintings, and sculptures may be copyrighted, of
course, but more mundane works such as instruction brochures, sales brochures,
and the like may also be copyrighted as well. The only requirement is that the
work contain at least a nominal amount of creativity. Searches are not performed
prior to the filing of a copyright application because if someone else has
already written the song or book you wrote, it makes no difference to the
Copyright Office as long as you did not copy from the earlier artist.
The 90 Day Rule
It makes good sense to register a copyright within ninety days of
publication of a work; any work so registered will be deemed registered prior to
infringement, even if infringement begins before the registration was accomplished. A work
registered more than ninety days after publication, and after infringement begins is still
protectable, but the measure of damages is actual damages, and the artist must bear his or
her own legal fees. A lawsuit to enforce a copyright on a work that was registered within
ninety days of publication or more than ninety days from said date but prior to the onset
of infringement may result in an award of statutory damages and attorneys' fees. Actual
damages are hard to quantify, but statutory damages are substantial and need not be
quantified. Prompt registration is therefore highly desirable.
The International Copyright Notice
The International Copyright Notice should be placed on all
works as soon as they are created; there is no need to file a copyright application before
applying such Notice. Thus, if you draw something catchy on a napkin in a restaurant, you
can put "© 1996 John Jones" on the napkin right away and mail the napkin,
complete with the International Copyright Notice, to the Copyright Office as an attachment
to a Copyright application. Actually, you would mail in a copy or photograph of the napkin
as the attachment. If your sketch has not been published as of the date you mail in your
copyright application, only one copy of the work will be attached to the application. If
the work is published, then two copies of it must be attached to the application, and the
date and nation of the first publication must be revealed.
More Details, and a Big Surprise
Unlike a patent application, a copyright application is a form that can
be filled out without the assistance of a lawyer, in most cases. However, there are a
number of pitfalls into which a novice can descend, especially if the work is a
compilation or a derivation from an earlier work. "Work for hire" issues can
also arise relating to ownership if the artist was employed at the time the work was
created, or if a contractual relationship exists between the artist and someone who has
commissioned the work. Suppose you're a famous photographer and someone hires you to fly
to Washington, D.C., to take a picture of the Washington monument for them. After
beseeching them to get a life, you agree to take the picture because you need the work.
They pay your roundtrip airfare, put you up in a fancy hotel for a week because you tell
them you need to wait for just the right weather and just the right lighting before you
can take a picture worth having, they buy you new camera equipment, pay for the film, and
give you a thousand bucks a day for your professional services. You then take the picture
at the appropriate moment, develop it, and note on the finished picture that you are the
copyright owner (by placing the International Copyright Notice, including the ©, the year
and your name). You deliver the picture to the guy who picked up the enormous tab for it,
and he explodes. "I paid a zillion bucks to have this picture taken! And you put your
copyright notice on it! I own the copyright to that picture; that's why I hired you and
paid all of your expenses!" Well, here's the big surprise: In the absence of an
agreement in writing to the contrary, you the photographer own all the rights to that
picture because you took it. It matters not who paid for it. You can even prevent the guy
who paid for it from making copies of it. He gets the original photo, and nothing more.
You own the negative and can make and sell as many copies as you like. The moral of this
story is that if you hire someone (who is not a regular employee of yours) to write a
story for you, to write a song for you, to take a picture for you, to design a brochure
for you, or whatever, put it in writing that the artist will assign the copyright in the
finished work to you when it has been completed.
I Don't Need a Patent - I'll Just
Copyright My Idea
Every patent lawyer has heard this one: "I'll just write
my idea down and copyright it. After all, a copyright is a poor man's patent." It's
true that if you write your idea down and copyright what you've written, you can prevent
others from making photostatic copies of what you've written down. In other words, the
copyright laws protect against the unauthorized copying of your physical writings.
However, the idea expressed in the writing is not protected. Thus, someone who reads and
understands your writing can go out and make the invention you've described and use it and
sell it, all without violating your copyright.
What Scope of Protection Does a
Copyright Give Me?
If someone who has had the opportunity to copy your work thereafter
makes a "substantially similar" version of it, that person can be held liable
for copyright infringement. It's an old wives tale that a copyright is avoided if three
changes are made, or if ten changes are made, or if the work is changed 10%, and so on.
There is no scientific, quantifiable amount or degree of changes that must be made to
avoid a charge of copyright infringement. If the accused work is substantially similar to
the protected work, infringement can be found if the opportunity to copy existed, even if
thousands of changes were made. If Shakespeare and his copyright in Romeo and Juliet
had not expired when West Side Story was written, he could've sued the writers of
that 1950's classic for copyright infringement, and won. Of course, West Side Story
was a highly professional, scholarly updating and paraphrasing of the Bard's play. The
point is that a copyrighted work has a reasonably broad scope of protection, whether it be
a song, a writing, or whatever. No one can "get around" a copyrighted work just
by making changes here and there, as is popularly believed. A copyright is a valuable
piece of property worth securing and protecting.
Copyrights - Our summary of key legal issues for
and software developers.
Copyrights - Our summary of the key legal issues
architects and builders.
for Hire Agreement - If an independent
contractor (i.e., not a full-time employee) creates
software, websites, art work, text, photographs or
the like, this agreement must be executed to
transfer ownership of the copyright.