E-Copyright Your Worksm

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Law Office of Marc D. Machtinger, Ltd.



Questions & Answers

Mr. Machtinger is an experienced Intellectual Property Attorney, providing the following professional copyright services:

  • Free initial telephone consultations.
  • Counseling, licensing, and legal advice regarding protection of artistic and literary works.
  • Preparation and filing of applications for copyright registration

Questions and Answers about Copyrights

 

What kinds of works are protected by Copyright? Original works of authorship (artistic or literary works) that are fixed in a tangible form of expression are protected by copyright law. The following categories of works may generally be protected by copyright:

    1. literary works;
    2. musical works, including any accompanying words
    3. dramatic works, including any accompanying music
    4. pantomimes and choreographic works
    5. pictorial, graphic, and sculptural works
    6. motion pictures and other audiovisual works
    7. sound recordings
    8. architectural works

These categories are often construed broadly. Computer programs may be considered literary works (note that computer programs may also constitute patentable subject matter. See Patents). The content of a website can be registered as a work in one of or any combination of the above categories.

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What rights are protected by Copyright? Copyright gives the owner exclusive rights including the right to reproduce, prepare derivative works, distribute copies of, perform or display publicly, the copyrighted work. A violation of these rights can give rise to both a civil cause of action and criminal liability. Copyrights are protected in most countries through national laws and international treaties. Copyright law does not protect the underlying idea or facts associated with the copyrighted work. Protection is only available for the expression of the author. Certain limitations on these rights are provided under the Fair Use Statute/Doctrine.

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Do I have rights in my artistic or literary works without a copyright registration? Yes. Copyright rights arise upon creation and fixation of the work in a tangible form, without registering the work with the Copyright Office at the Library of Congress . It is to the owner's advantage to place an appropriate copyright notice on the work (and may be required in order to preserve rights if the work was created or published prior to March1, 1989). It may also be advantageous to register the work with the Copyright Office within 3 months of publication, and prior to any infringement of your copyright rights.

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When can I place an appropriate copyright notice on my work, and what elements should the notice include (such as the or symbol)? You may use an appropriate copyright notice on your work immediately after creation. No registration of the work is necessary to apply a copyright notice, although there are various advantages to registering your work with the Copyright Office. At the very least, your copyright notice should include the symbol (or the word "copyright" or abbreviation "copr.") followed by the year of first publication and the name of the copyright owner. For example, " 2000 John Doe." For sound recordings, the symbol should be used (from the word "phonorecords"). Unpublished works which leave control of the copyright owner should include a notice such as "Unpublished work 2000 John Doe." Seek legal advice on the positioning and sufficiency of your copyright notice.

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What are the benefits of attaching a copyright notice to my work? The use of a copyright notice is not required in order to secure copyright protection on works which were first published on or after March 1, 1989. For works first published prior to March 1, 1989, a copyright notice is mandatory, and its omission on copies of the work could result in the loss of copyright protection. Even though a copyright notice is optional on works first published after March 1, 1989, it is advisable to attach such a notice to all copies of your work. First, it serves to inform the public that the work is protected by copyright, which can help serve as a deterrent against copying. Second, it identifies the year of first publication and the copyright owner. Finally, it protects against an infringer asserting a defense of "innocent infringement" which can result in a reduction in damages available to the owner.

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What are the benefits of federal copyright registration? Original works of authorship can be registered with the Copyright Office at the U.S. Library of Congress to obtain certain benefits. First, registration establishes a public record of the copyright claim. For works of U.S. origin, registration is necessary prior to filing a suit for infringement. Second, if registration is made before or within 5 years of publication, registration will establish a presumption in court of the validity of the copyright and of the facts stated in the certificate of registration. Furthermore, if registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Finally, registration allows the owner of the copyright to record the registration with the U. S. Customs Service in order to prevent the importation of infringing copies.

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What is the duration of copyright protection for works created on or after January 1, 1978? For artistic and literary works created on or after January 1, 1978, copyright protection for individuals extends for the life of the author plus 70 years (for joint authors, the term is measured with respect to the last surviving author). For "works made for hire" created after January 1, 1978, the term of protection extends 95 years from first publication or 120 years from creation, whichever expires first.

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What is the duration of copyright protection for works created before January 1, 1978? For works created prior to January 1, 1978, various different rules apply depending on the details. In general, works created before January 1, 1978 but not published or registered by that date receive the same length of protection as those created after that date as above, however, not to expire before December 31, 2002 (and, if published before December 31, 2002, not to expire before December 31, 2047). For works which were either published with a copyright notice or registered prior to January 1, 1978, protection may last 95 years from first publication with a notice or registration, depending on the details and possible renewal requirements. As the law in this area has changed over the years and contains various intricacies, seek legal counsel in order to determine the true expiration date of the copyright term for such works.

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What usages of copyrighted material are considered permissible Fair Use? Fair use of copyrighted material including reproductions for purposes of criticism, comment, news reporting, teaching, scholarship, or research are not considered infringements of copyright. There is no specific rule as to what portions of a work or what situations constitute fair use, however, courts will consider several factors in determining whether use is fair. The factors considered are the purpose and character of the use, including whether for commercial or nonprofit educational purposes, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. One should always include a citation to give credit to the source of a portion of a work used, however, such a citation does not affect whether the use of the copyrighted material would be considered fair use. The safest route is to seek written permission from a copyright owner to use the portion of the work. Seek legal counsel to obtain a legal opinion regarding whether a particular use would likely be considered a fair use.

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For further information, visit the Copyright Office web site, or Contact Us .

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