Articles

Copyrights

This memorandum is intended to provide you with basic information about copyrights, what they are, what rights they provide, how to acquire and protect them, and what remedies are available when they are infringed.

What are they?

Copyrights are rights granted pursuant to Article 1, Section 8, Clause 8 of the United States Constitution and laws promulgated by Congress, to protect original works of authorship including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, computer program and architectural works. In order to receive copyright protection works must be fixed in some tangible medium of expression, for example, reduced to writing, a sound recording, a motion picture or other audiovisual form, or software.

What rights do they provide?

Copyrights grant five (5) exclusive rights to the author of the work: the right to (1) reproduce the work, (2) prepare derivative works, (3) distribute copies of the work, (4) perform the work publicly, and (5) publicly display the work. Copyrights do not protect such things as ideas, facts, lists of ingredients, blank forms, or functional aspects of works. Under the Copyright Term Extension Act of 1998, copyrights are granted for the life of the author plus seventy (70) years. In the case of "work made for hire," i.e. a work created for another person or company which is owned by that person or company, not the author, copyrights are granted for one hundred and twenty (120) years from creation of the work or ninety five (95) years from publication of the work, whichever occurs first.

How are copyrights acquired and protected?

A copyright arises from the creation of the work, i.e. the copyright attaches to the work when it is created and fixed in some tangible medium of expression. Copyright registration is not required to obtain a valid copyright, but registration is advisable. Registration occurs by filing an application for registration with the Register of Copyrights at the Library of Congress. However, registration is required before an action for copyright infringement can be brought in the United States. Obtaining the registration within the first five (5) years following publication provides prima facie (a fact presumed) evidence of the validity of the copyright. A notice of copyright (whether registered or not) is not required to appear on copies of a work, but notice is advisable. The notice should appear on each copy of the work in one of the following forms: Copyright (year) (owner), (year) (owner), or Copr. (year) (owner).

Remedies for infringement

Various remedies are available to the copyright owner for infringement by another including, an injunction, impoundment and/or destruction of infringing articles, and actual damages and recovery of infringer's profits or statutory damages. Statutory damages may be sought when there are little or no actual damages or infringer's profits, or they are difficult to prove. Statutory damages, as determined by the Court, range from $500 to $20,000 for an infringement of one copyrighted work by one infringer. The Court can also award attorney fees and costs. In the case of willful infringement the Court can award up to $100,000. Willful infringement can also result in criminal prosecution of the infringer.

Momkus McCluskey, LLC has an active intellectual property practice. The firm offers comprehensive legal services to its clients with regard to trademarks, copyrights, trade secrets, licensing and other related intellectual property matters. If you have questions about any of the information presented in this memorandum or regarding any other intellectual property issues please give us a call at (630) 434-0400.

Momkus McCluskey, LLC