Are You a Legal Professional?

What is a Copyright?

Copyright is a form of intellectual property protection provided by the laws of the United States. Copyright protection is available to original works of authorship that are fixed in a tangible form, whether published or unpublished. The categories of works that can be protected by copyright laws include paintings, literary works, live performances, photographs, movies, and software. This article provides a brief overview of what copyright is, the rights of the copyright owner, how to register a copyright, and the importance of including a copyright notice on your work.

What Is a Copyright? An Overview

The dictionary defines copyright as "a person's exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work)."

It's important to understand that copyright law covers the "form of material expression," not the actual concepts, ideas, techniques, or facts in a particular work. This is the reason behind why a work must be fixed in a tangible form in order to receive copyright protection. A couple examples of works being fixed in a tangible form include stories written on paper and original paintings on canvas.

A Copyright Owner's Rights

The primary goal of copyright law is to protect the time, effort, and creativity of the work's creator. As such, the Copyright Act gives the copyright owner certain exclusive rights, including the right to:

  • Reproduce the work
  • Prepare "derivative works" (other works based on the original work)
  • Distribute copies of the work by sale, lease, or other transfer of ownership
  • Perform the work publicly
  • Display the work publicly

The copyright owner also has the right to authorize other people to do any of the rights mentioned above. The copyright owner has the option and ability to transfer his or her exclusive rights -- or any subdivision of those rights -- to others as well. The Copyright Office does not have forms for these transfers, so a transfer of copyright is usually done through a contract. It is not legally required for a transfer to be recorded with the Copyright Office, but having a legal record of the transaction is often a good idea.

If an author or artist creates a work for a company or in the course of his or her employment, the creator is usually not the copyright owner. This situation is known as a "work made for hire," and it gives copyright ownership to the employer or person who commissioned the work. A work made for hire situation can occur when an independent contractor is hired to create a particular work, or if the work is created by an employee while he or she is on the job. For example, if an employee writes articles for a company, the company is the copyright owner not the actual writer.

Registering Your Copyright

Registration with the U.S. Copyright Office is not necessary to secure copyright protection in a work; however, it does have its advantages. For example, registering your copyright provides a public record of the copyright claim. Copyright registration is also necessary (for works of U.S. origin) before a copyright owner can file an infringement lawsuit in court. Finally, if you register your copyright within three months of publishing the work or before an infringement occurs, you have the ability to recover attorney's fees and statutory damages in the event of a lawsuit.

The application to register a copyright contains three basic elements: the application form, a non-refundable filing fee, and a non-returnable "deposit" of a copy of your work. The best way to register your copyright is to do it online through the electronic Copyright Office (eCO). Online filing has several advantages including a quicker processing time, lower filing fees, and the ability to track your status online.

Copyright Notice

Although previously a requirement under United States law, a copyright notice is no longer required in accordance with the Berne Convention (for any work created after March 1989). Please keep in mind, however, that a notice of copyright can still benefit the copyright owner.

First of all, it gives notice to the public that the work is under copyright protection. It also notifies the public who the copyright belongs to and the year in which the work was first published. It's also easy to add the copyright notice because it doesn't require the copyright holder to seek any kind of permission to include the notice or to register with the Copyright Office. The final reason a copyright notice is a good idea is because it prevents a defendant from claiming an innocent infringement defense (a claim that it was an "accidental" infringement) in a copyright infringement case.

The Limits of Copyright Protection

Copyright law only covers the particular form or manner in which information or ideas have been manifested, known as the "form of material expression." The law does not cover the actual ideas, concepts, facts, or techniques contained in the copyright work. For example, the Superman comic books are copyrighted, which means that they cannot be reproduced and distributed for sale without authorization from the copyright owner. The copyright also prohibits anyone else from creating similar works involving the Superman character present in the comic books. However, the copyright does not prohibit anyone from creating a work about a super-human character in general.

Keep in mind that things not covered by copyright law may be covered under other forms of intellectual property. For instance: ideas, procedures, methods, systems, and processes are not covered by copyrights, but they can be protected under patent law. Similarly, titles, names, slogans, and symbols cannot be copyrighted, but can be trademarked.

Getting Legal Help

Understanding what a copyright is -- or is not -- is the first step. If you have any questions about whether your work qualifies for copyright protection or would like help registering your copyright, you may want to contact an experienced intellectual property lawyer in your area.

For more information and resources related to this topic, you can visit FindLaw's section on Copyrights.

Next Steps
Contact a qualified business attorney to help you identify
how to best protect your business' intellectual property.
(e.g., Chicago, IL or 60611)

Help Me Find a Do-It-Yourself Solution