Information Center Intellectual Property

Copyright

A copyright is a property right which gives an author of a work four main exclusive rights: (1) the right to reproduce or make copies of a work of authorship, (2) the right to adapt the work or make derivative works; (3) the right to distribute copies of the work, and (4) the right to publicly perform and/or display the work.

The exclusive rights of a copyright holder are subject to several limitations, some of which seek to preserve the right of free expression and ability to comment granted by the First Amendment, and some of which are carve-outs designed to aid certain educational and non-profit organizations. In the United States, the authors of certain works of fine art enjoy an inalienable "moral right" which is designed to prevent the subsequent misuse or mutilation of their works. Moral rights are more extensive in many foreign countries.

What a Copyright Protects

Copyrights do not protect ideas per se but only original expressions of them. In fact, where an idea can only be expressed in one or in only a limited number of ways, the expression will not have a copyright as the idea is then said to "merge" into the expression. Where an idea can be expressed in many different ways, each of them is potentially copyrightable, but the fact that an idea has been expressed in different ways does not mean that one expression constitutes an infringement of any other.

For an expression of an idea to be protected under copyright, it has to be fixed in a tangible medium, such as paper, canvas, a three-dimensional object, or a machine-readable medium such as a sound recording, optical disk or electronic memory. Copyrights may cover compilations of works and derivative works, as long as the contribution of the compiler or author of the derivative work is sufficiently original in view of the prior work.

Ownership of Copyright

A copyright in a work is initially owned by its author. If there are two or more authors of a work, the copyright is jointly owned. In limited circumstances, such as where an employee is making a work for an employer, the employer will be considered the author of the work and the work will be considered to be one "made for hire." The works of independent contractors are typically not "works made for hire", except in limited statutory circumstances. The author(s) of a copyright can assign their interest therein to any other person. Any such assignment must be in writing and should be recorded in the United States Copyright Office. Licenses can be written or oral.

Infringement of Copyright

Any unauthorized reproduction, adaptation, distribution, public display or performance of a copyrighted work is a copyright infringement. The copyright in the work does not need to be registered and notice of copyright (©) does not need to appear with the work. One can assume that, unless there is evidence to the contrary, any work one comes across is copyrighted, and in most circumstances one will require the permission of the owner to copy it.

The scope of exclusive rights granted to a copyright owners is, however, riddled with statutory exceptions. One of the most important of these is "fair use", in which the reproduction of copyrighted subject matter may be excused on the grounds that it is for criticism, comment, news reporting, teaching, scholarship or research. Many factors will go into a judicial finding of whether an otherwise infringing use is "fair" or not, including the extent of the material copied and the commercial effect of the use on the copyright owner. Other exceptions exist for libraries and educational institutions.

Registration of Copyright

Copyright subsists from the moment a work is fixed in a tangible medium of expression, and does not depend on registration. But registration (or at least the attempt to do so) is necessary for bringing an action for infringement in federal district court, and provides many benefits. To register copyright in a work, the claimant sends in an application for registration to the Register of Copyrights. Typically one or two copies of the work will be sent with the application, depending on the character of the work and whether it has been published. Registration is recommended for those works for which the probability of unauthorized duplication is high.