The Law Firm of
Louis Ventre, Jr.
Registered Patent Attorney
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).
All works under copyright protection that are published in the United States are subject to the mandatory deposit provision of the copyright law (17 U.S.C. section 407). This law requires that two copies of the best edition of every copyrightable work published in the United States be sent to the Copyright Office within 3 months of publication. If it is an unpublished work, then an author can submit it via an electronic copy (e.g., a pdf document).
Mandatory deposit is not the same as registration. Section 408 of the copyright law, for a fee, provides the option to formally register the work with the U.S. Copyright Office. This registration process provides a legal record of copyright ownership as well as additional legal benefits in cases of infringement. However, optional registration fulfills mandatory deposit requirements.
Literal copying of a work is considered a copyright infringement. A copyright protects the expression of an original work of authorship. A fixed cost of $345 is the usual cost involved in preparing a federal application, responding to any action from the Copyright office and delivering your registration certificate. This includes attorney fees plus filing costs ($35) plus miscellaneous mailing and handling costs of ~$10. Unusual, out of pocket costs are extra.
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 DESIGNWater Craft Hull Design Registrations. A special provision of copyright law (17 U.S.C. § 1301, et seq.) was enacted in 1998, and amended in 2008, 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. The period of protection is 10 years, and protection is available only for original designs.
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 CREATIONCopyright 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:
COPYRIGHT REGISTRATIONRegistration. 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.
WHEN TO REGISTER A COPYRIGHTTiming. 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 CREATESEmployee 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 NOTICECopyright 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."
COPYRIGHT PROTECTIONS VARIEDCopyright Term. The copyright term in the United States as enacted by Congress is: 95 years for works published before 1978; life of the author plus 70 years for works created by a natural person after 1978; and 95 years from publication or 120 years from creation (whichever comes first) for works made for hire created after 1978 (see 17 U.S.C. §§ 302(a), (c) and 304(a), (b)).
For an individual, 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.
Most books published within the past 50 years would likely fall within the term of copyright protection. Books published in the United States before January 1, 1964 were subject to a mandatory renewal requirement under the previous copyright law. If a U.S. author failed to comply with this requirement or other formalities imposed by U.S. law, his or her work may have fallen into the public domain.
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 COSTSCosts. 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 cost of $345, which includes attorney fees plus the usual filing, copying, mailing and handling costs. Unusual, out of pocket costs are extra. 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 ($165 eff. 01-AUG-2009); additional
certificate $40; and recordation of license agreements $125.
In addition to copyright registration, The Law Firm of Louis Ventre, Jr. can be engaged to perform the following additional tasks:
PROCEEDING WITH COPYRIGHT REGISTRATIONHow 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.
Click Here to Fill-In a Web Form Email
© 2004 Louis Ventre, Jr.
This file last modified 11/12/11.