Copyright

Original works of authorship may be copyrighted and include: literary works; musical works, including accompanying words; dramatic works, including accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Within these categories a wide range of works may be registered from photographs to modern dance steps, table linen designs to lamp base sculptures.

Copyright subsists only in works that are fixed in a tangible medium of expression, that is, some physical form. To protect music, for example, it must exist as a writing (i.e. musical notation) or recording. A qualifying work is copyrighted at the moment of creation—when a photographer exposes film or creates a digital image file, or a writer places pen to paper, for example. Note that ideas, concepts, methods of operation, principles, or discoveries are not eligible for copyright protection, only their descriptions if written. [See IDEA PROTECTION, TRADE SECRETS)

The United States Copyright Act gives copyright owners—usually the actual creator of an original work—the exclusive right to control the reproduction, distribution, performance, and display of a work, as well as creation of a derivative work (i.e., another work based upon an original work).

The owner of a physical work, like a painting, may not be the owner of the copyright. Therefore, a copyright owner may enjoy the exclusive rights offered in the Copyright Act although some other person possesses or owns the physical art. This situation is seen when sculpture, paintings, and other kinds of original art are sold and the buyer may only display the purchase in her home, but the artist may make derivative copies, have photographs of the work reproduced in magazines, and the like.

A copyright is infringed when someone engages in any of the exclusive rights using a copyright owner’s work without authorization (for example, putting a copyright owner’s music, images, or text on the Internet).

Before a copyright owner can sue for infringement and be eligible for statutory damages and reimbursement of lawyer’s fees and costs, the copyrightable work must first be registered with the Copyright Office. If an unregistered, published work has been infringed the owner only has ninety (90) days after first publication in which to register the work. If work is infringed and not timely registered only actual damages and no attorney's fees will be available, thus often making a case unattractive to lawyers.

What does this mean in practical terms? If you haven’t registered a work and it is infringed, you are eligible only for what you could have received had the infringer come to you and licensed the work in the first place. So, if you would have licensed the work for, say, $750, that may be all that you can recover in a lawsuit and you can’t be compensated for lawyer’s fees that may range some tens of thousands of dollars. If you timely registered the work, you are eligible to recover $750 up to $30,000, and if you can prove the defendant willfully infringed (that is, knowingly used your work to avoid the copyright law) you can receive up to $150,000 plus lawyer’s fees and costs.

Although copyright generally exists for the life of the author plus 70 years for works created after January 1, 1978, owners should always register copyrightable work. Even if a physical work is sold, the author should retain and register the copyright in order to have the right to use the work in promotions, as a basis for derivative work, and to be able to reproduce and sell or license copies. A copyright is a valuable asset for authors and their heirs, and the cost to register a copyright is minimal, but you have to take the time to do it.

The Law Office of David MacTavish can negotiate agreements or provide stock or draft new documents for the sale or licensing of artwork, register copyrightable work, and address any of your other copyright needs and questions.



The information you obtain at this site or by e-mail is not, nor is it intended to be, legal advice.
You should consult an attorney for individual advice regarding your own situation.
Copyright 2008 David MacTavish