Copyright. Generally, a copyright is a form of legal protection provided to an author of an original work (written, pictorial, graphic, sculptural, pantomimes, musical, architectural, etc). Literal copying of a work is considered a copyright infringement. A copyright protects the expression of an original work of authorship. Attorney fees ($300) plus filing costs ($35) for preparing and filing a copyright application are typically $335.

What Copyright Does Not Protect. A copyright does not protect the idea, procedure, process, system, method of operation, concept, principle, or discovery that may be described, which are protectable in a utility patent. For example, copyright protection does not protect a work from reverse-engineering by competitors. Software is a good example. Copyright infringement will not exist when reverse-engineering does not result in literal copying of the original code, but merely an understanding of the underlying ideas and functions. For software and other works, a utility patent should be sought to provide the greatest protection against reverse engineering.

A design patent might also be described as protecting expression, but an important distinction is that a patent prevents others from using what is patented regardless of whether it is independently developed; a copyright does not, except as noted for water craft hull designs in the next paragraph.

COPYRIGHT REGISTRATION OF A WATERCRAFT HULL DESIGN

Water Craft Hull Design Registrations. A special provision of copyright law (17 U.S.C. § 1301, et seq.) was enacted in 1998 to protect vessel hulls and it parallels a design patent in many respects. The law authorizes issuance of a certificate of registration for an original design, which makes the vessel attractive or distinctive in appearance to the purchasing or using public, even if its design is dictated only by a utilitarian purpose. In addition to a hull, the registration can apply to a plug, which is a model of a vessel used to make a mold; and a mold for a vessel, which is a form in which a substance for material is used. The Register of Copyrights is the issuing authority and not the United States Patent and Trademark Office.

One important advantage is that registration gives the design owner 2 years from public disclosure of the hull design to seek registration, as opposed to only one year for a design patent.

Publications showing the registered vessel hull design must be marked with ''Protected Design'', the abbreviation ''Prot'd Des.'', or the letter ''D'' with a circle , or the symbol ''*D*''; the year of the date on which protection for the design commenced; and the name of the owner, an abbreviation by which the name can be recognized, or a generally accepted alternative designation of the owner.

Individuals who make, use, sell or import the protected design without the authorization of the registered design owner, during the period of 10 years from registration or first public use, may be subject to infringement liability. It is not a drawing or picture of the hull design that is protected, but rather reproduction of the actual hull for uses other than teaching or analysis. In contrast, a design patent has a term of 14 years from the issue date and prevents reproduction for any use.

This registration terminates upon issuance of a design patent. Also there is a broad experimental use provision, which permits others to reproduce the registered hull for research.

COPYRIGHT ARISES UPON CREATION

Copyright When Fixed. The copyrightable work must be fixed in a copy or phonorecord for the first time. Subject to exceptions, a copyright is the exclusive right to, and to authorize others to:

make copies of the work;

prepare derivative works;

sell or distribute copies;

perform the work publicly; and,

display the work publicly.

Two of the major exceptions are encompassed in doctrines of "fair use," and "compulsory license." For a further explanation, see the copyright infringement discussion.

COPYRIGHT REGISTRATION

Registration. Copyright registration is a legal formality intended to make the claim to a copyright a public record. Registration is not a condition of copyright protection: Under the present copyright law, a work is automatically protected by copyright when it is created. However, there are definite advantages in terms of damages for early registration. For example, statutory damages and attorney fees are only available if the copyright is registered either before the infringement, or within three months of first publication of the infringed work. (17 USC 412). For a further discussion of infringement, see the copyright infringement discussion.

Registration Advantages. Advantages of registering copyright adhere relative to enforcing the copyright in court. Generally, one must have a registered copyright to enforce the rights granted above with the filing of an infringement suit.

Registration, within 5 years of publication, establishes the minimum level of evidence in court of the validity of the copyright and of the facts stated in the certificate.

Registration, within 3 months after publication of the work or prior to an infringement of the work, affords the owner the right to collect statutory damages and attorney's fees. 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. For additional information, you can download a document, "How to Protect Your IPR: Recording Copyrights and Trademarks with U.S. Customs and Requesting Surveys of Patent Infringing Imports," in MSWord format (Publication No. 563) found on this U.S. Customs Service web site page. See also the U.S. Customs Service Website at www.customs.gov for other online publications.

WHEN TO REGISTER A COPYRIGHT

Timing. Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

COPYRIGHT OWNER IF EMPLOYEE CREATES

Employee as Author. In the case of works made for hire, the employer and not the employee is usually considered to be the author. Works made for hire include works created by an employee in the course and scope of his or her employment.

COPYRIGHT OWNER IF CONTRACTOR CREATES

Independent Contractor as Author. Section 101 of the copyright law defines a "work made for hire" and provides that for a commissioned work, the parties may expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. This could be a trap for the unwary business that commissions a consultant to prepare written works. For example, if a business pays a consultant to create software for use in the business and there is no written copyright assignment, the business will likely only have limited rights to use the software. That business could later become an infringer if a later sought to sell the software and the consultant may have rights to sell the software to other parties in the same line of business. Even when the business has no intent to sell the software, lack of full rights to the software could adversely affect the decision of a prospective purchaser of the business. The lack of a written agreement would also cloud ownership and use of software improvements, called "derivative works." In short, a written agreement assigning copyright ownership is essential in any relationship with a contractor.

MARKING WORKS WITH A COPYRIGHT NOTICE

Copyright Symbol ©. The typical U.S. notice for a copyright of visually perceptible works is the copyright symbol, ©, followed by the year of first publication and the name of the owner. The symbol may be replaced by the word, "Copyright," or the abbreviation, "Copr." For non-visually perceptible works like music,

(the letter P in a circle) is used on a phonorecord. Examples are:

All Rights Reserved. The typical European notice: "All Rights Reserved" is also sometimes used. However, all works created after March 1, 1989 (Berne Convention effective date) are automatically protected and no notice is required. The copyright in the work of authorship immediately becomes the property of the author who created the work. Today, neither of the traditional notices is mandatory for copyright protection to apply to works created after 1989, although the U.S. notice is recommended because it serves notice on the public and precludes a defense of "innocent infringement."

International Protection and the Copyright Symbol ©. There is no such thing as an "international copyright" that will automatically protect an author’s writings throughout the world. Protection against unauthorized use in a particular country basically depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions. There are two principal international copyright conventions, the Berne Union for the Protection of Literary and Artistic Property (Berne Convention) and the Universal Copyright Convention (UCC). Foreign protection is highly specific to the country in question. If you need to know about a particular country, ask.

Two notes of caution on using the copyright notice are made:

Works published before January 1,1978, are governed by the previous copyright law. Under that law, if a work made in the United States is published under the copyright owner’s authority without a proper notice of copyright, all copyright protection for that work is permanently lost in the United States. Peculiarly, similarly published foreign works are saved from such loss by The Uruguay Round Agreements Act of 1994. So similarly published foreign works get more protection than U.S. works!

The United States is also a member of the Universal Copyright Convention (the UCC), which came into force on September 16, 1955. To guarantee protection for a copyrighted work in all UCC member countries (some of which are not party to the Berne Convention), the notice must consist of the symbol © (the word "Copyright" or the abbreviation are not acceptable), the year of first publication, and the name of the copyright proprietor.

Where to Place Copyright Notice. The copyright notice should be placed on copies or phonorecords in such a way that it gives reasonable notice of the claim of copyright. The Copyright Office has issued regulations concerning the recommended position of the notice and methods of affixation. They can be found at 37 CFR §201.20.

COPYRIGHT PROTECTIONS VARIED

Copyright Term. The copyright term is currently 70 years plus the life of the author. 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.

U.S. copyright in any work published or copyrighted prior to January 1,1923 has expired by operation of law, and the work has permanently fallen into the public domain in the United States. A handy table of copyright expiration dates is published by Cornell University.

Common Law and Copyright Protections. Before 1978, unpublished works were entitled to protection under common law without the need of registration. Works published with notice prior to 1978 may be registered at any time within the first 28-year term, which opportunity completely expires by 2007. Works copyrighted between January 1,1964, and December 31,1977, are affected by the Copyright Renewal Act of 1992, which automatically extends the copyright term and makes renewal registrations optional. For works under copyright protection on or after January 1,1978, registration may be made at any time during the term of protection. Sound recordings fixed before February 15,1972, are not eligible for federal copyright protection. The Sound Recording Act of 1971, the present copyright law, and the Berne Convention Implementation Act of 1988 cannot be applied or be construed to provide any retroactive protection for sound recordings fixed before February 15, 1972. Such works, however, may be protected by various state laws or doctrines of common law. For example, New York's highest court unanimously decided April 5, 2005 in Capitol Records v. Naxos of America "that New York "provides common-law copyright protection [in perpetuity] to sound recordings [of performances] not covered by the federal copyright act, regardless of the public domain status in the country of origin, if the alleged act of infringement occurred in New York." So pre-1972 recordings of performances may be protected by common law copyright at least until federal pre-emption takes over in 2067 under the Sonny Bono Copyright Term Extension Act (17 USC §301).

COPYRIGHT REGISTRATION COSTS

Costs. The basic registration fee payable to the Copyright Office for a copyright is $45 ($35 if electronically filed) and it takes about 5 months to get a certificate of registration. Services include preparation of your application for a fixed fee of $300 plus filing and copying costs actually incurred. If you prefer to prepare your own application, the Law Firm of Louis Ventre, Jr. will review your application prior to submission for $50. For other copyright services, charges are by the hour at a rate of $250 per hour, plus costs,

Other Government Costs. The Copyright Office of the Library of Congress charges the following: search fees and certifications $150 per hour; additional certificate $40; and recordation of license agreements $125.
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In addition to copyright registration, The Law Firm of Louis Ventre, Jr. can be engaged to perform the following additional tasks:

Notices of Normal Commercial Exploitation or Availability at Reasonable Price to prevent libraries from making copies of phonorecords during the last 20 years of the copyright term.

Services ancillary to compulsory and statutory licenses in the Copyright Act:

Statutory license for secondary transmissions by cable systems (section 111);
Statutory license for making ephemeral recordings (section 112);
Compulsory license for the public performance of sound recordings by means of a digital audio transmission (section 114);
Compulsory license for making and distributing phonorecords (section 115);
Compulsory license for public performances on coin-operated phonorecord players (section 116, [1978-1989, 1993], section 116A (1990-1993);
Compulsory license for the use of certain works in connection with noncommercial broadcasting (section 118);
Statutory license for secondary transmissions by satellite carriers for private home viewing (section 119);
Statutory license for secondary transmissions by satellite carriers for local retransmissions (section 122); and,
Statutory obligation for distribution of digital audio recording devices and media (chapter 10).

Investigation of the copyright status of a work (The Law Firm will also arrange for an official copyright office search.)

Advice on compliance and the copyright regulations;

Transfer of copyright owner's exclusive rights;

Correction of an error in a copyright registration; and,

Drafting a "work for hire" provision for a contract.

PROCEEDING WITH COPYRIGHT REGISTRATION

How to Proceed. Telephone (703-242-1247) or email Louis Ventre, Jr. with a short description of the information you want to copyright or other requirements relating to copyright. If the Law Firm has no conflicts and agrees to represent you, you will receive a retainer agreement with additional instructions on what information is needed.

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This file last modified 11/28/07.
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