Following specific technical requirements, copyright owners can also transfer some or all of their exclusive rights. You should consult your own attorney on the issues of ownership, transfer and licensing.
Rights and Limitations of
Copyright Owners
Rights
The owner of the copyright has certain exclusive rights, including the right to:
- Reproduce the work in copies.
- Prepare derivative works.
- Distribute copies to the public by sale or other transfer of ownership, or by rental, lease or lending.
- Display the copyrighted work publicly
- Perform the work publicly (e.g., for dramatic or literary works).
Limitations
The rights given to copyright owners are not unlimited in scope. Among the limitations are:
FAIR USE
Considered one of the most significant limitations to the rights of copyright owners, the Doctrine of Fair Use states that the "fair use of copyrighted work for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.€VbCrLf
The following four factors help determine what is "fair use€VbCrLf
1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for, or value of, the copyright work.
IDEAS
Ideas, procedures, formulas, methods, systems, processes, concepts, principles, discoveries and devices are not protected by copyright law. However, the patent laws may provided protection for some of these items.
SYMBOLS
Familiar symbols, simple geometric shapes (although combinations of such shapes can be copyrighted), standard calendars, rulers, and height-and-weight charts can not be covered by copyrights.
TYPOGRAPHY
Variations of typographic ornamentation, lettering or coloring are not covered by copyrights.
How copyrights are created
A copyright is secured automatically when a work is created and fixed in a "tangible medium of expression." Copyright automatically becomes the property of the author who created it. No publication or registration or other action in the copyright office is required.
For works created over a period of time, copyright protection covers the work-to-date. For works that have gone through different versions, each version is a separate work.
Although copyrights are created automatically, authors may choose to also give Notice of Copyright (notice is generally required for works first published before March, 1989) and to register their copyright with the copyright office. The mechanics of the registration process are discussed later.
Note: that a copyright comes into existence when a work is CREATED, not when it is published. The Copyright Act defines publication as the "distribution of (or offering to distribute) copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." A work is "published€VbCrLf when the author gives the public the opportunity to obtain it or, in some circumstances, to see it.
Although publication is not required in the creation of a copyright, it is an important area of copyright law. For example, the date of publication may have a bearing on the length of a copyright for a work made for hire.
Limitations to Copyright Protection
- Compilations, derivative works and useful articles.
Copyright protection applies only to the new material contributed by the author of the compilation and implies no right to pre-existing material
Compilations
The Copyright Act defines a compilation as a work formed by the assembling and collection of pre-existing materials or of data that are selected arranged or coordinated in a way that the resulting work, as a whole, comprises and original work of authorship.
Derivative works
These works are "based upon€VbCrLf one or more pre-existing works, such as the translation, adaptation, revision, abridgement, recasting or other transformation of the copyrighted work.
Useful articles
Copyright covers the design, but not the "useful article" itself. These are clothing, rugs, furniture and machinery that have intrinsic, utilitarian functions. Although copyright protection may protect any pictorial, graphic or sculptural components of such articles such as the design on rugs or other fabrics, it does not extend to their mechanical or utilitarian aspects.
Note: Some designs of useful articles may qualify for protection under the federal design patent law. For further information, write the Commissioner of Patents and Trademarks, Washington, D.C. 20231.
What a Copyright does not Cover
Expressions of ideas versus ideas
The Copyright Act was designed to protect the expression of an idea, but not the idea itself. For example, and author can copyright his painting of a particular red design on a white background, but cannot copyright the idea of using the combination of red and white.
Examples of things that cannot be copyrighted
- Titles, names, words, short phrases and slogans (the trademark laws may provide protection for some of these items).
There are also some specific limitations for particular types of work. For example, for an architectural work that has been constructed and is visible to the public, the copyright owner of the architectural work cannot prevent anyone from displaying pictures of the building. The copyright owner can not stop the owner of the building from altering or even destroying the building.
Life-span of copyright protection
Copyrights only last a limited time. After that time has expired, works enter the "public domain€VbCrLf and may be used relatively freely.
All works created after January 1, 1978 generally have the following protection:
Individual and co-authors
Works by individuals are protected from the moment of creation, and are given a term extending for the author's life plus 70 years after his/her death. For works that are co-authored, the term lasts 70 years after the last surviving author's death.
Works made for hire/anonymous and pseudonymous works
The copyright extends 95 years from publication or 120 years from creation, whichever is shorter. In the event the identity of one or more of the authors of an anonymous or pseudonymous work is revealed before the end of that term, the time period reverts to the one appropriate for the circumstances as described above.
(For works created prior to Jan.1, 1978 the length of copyright protection depends on their status under the prior law on that date. In general, the current act significantly extends copyright protection for works registered under the prior act.) for works registered under the prior act).
All copyright terms run to the end of the calendar year in which they expire.a
What is "infringement?
Infringement is a violation of one or more of the copyright owner's exclusive rights. In order to prove infringement in court, a copyright owner needs to show:
(1) Ownership of a valid copyright, and
(2) Copying of protected elements of the work
Since direct proof of copying is usually difficult to find, copying can be shown by proving:
(1) The infringer had access to the protected work, and
(2) The infringing work is "substantially similar€VbCrLf to the protected work.
When you suspect infringement
Here are the steps you should take when you suspect your copyright is being infringed.
(1) Register your copyright
If you haven't already registered your copyright, do so. You generally cannot bring suit without a registration.
(2) Notify the infringer
The infringer should be sent a "cease and desist letter preferable written by an attorney for the copyright owner. The letter should state the basis for your claim of copyright ownership, the nature of the perceived infringement, and a demand that the infringement cease by a certain date. Other demands can also be included in the letter. In some circumstances, it may help to suggest that any claims for damages will be waived if the infringer agrees to enter into a licensing agreement with the copyright owner.
(3) Litigation
If no amicable resolution can be reached, litigation may be appropriate. Lawsuits must be filed no later than three years after the infringement. If suit is not filed as soon as possible after the infringement, then the court may not order that the infringement stop while the lawsuit is pending.
Remedies
Injunctive relief
As part of a final judgment, a court can issue an order requiring the infringer to stop infringing. The court can also order the destruction or other reasonable disposition of the infringing goods as part of the final judgment.
While the lawsuit is still pending, the copyright owner can ask the court to preliminarily enjoin the infringement, and impound any allegedly infringing goods. In order to have the court order this preliminary relief, the copyright holder will generally have to show that he or she is likely to win the lawsuit and has acted a swiftly as possible to stop infringement and to protect the copyright.
The court will likely require the copyright owner to post a bond to cove the defendant's losses, if the court decides after hearing the entire case that the injunction should not have been issued.
Many infringement cases begin and end with the request for preliminary injunctive relief. In order to rule on such requests, courts hold hearings and both sides put on the best evidence they have.
Because the court issues a ruling based on whether the copyright owner is likely to win or not, the parties have a good idea whether continued litigation is worthwhile.
Any injunctive relief orders can be enforced throughout the United States.
Damages
There are two categories of damages: actual and statutory. As the term implies, actual damages can be proved.
A copyright owner must choose between either actual damages or statutory damages. Both will no be awarded.
Statutory damages are generally not available for any infringement that occurred prior to the registration of the copyright.
If you choose actual damages, you must prove your actual damages occurred as a result of the infringement. Actual damages may be more OR less than statutory damages.
- Actual damages plus profits.
These are the actual, provable damages suffered by the copyright owner as a result of the infringement, plus any profits of the infringer that are attributable to the infringement. The infringer's profits are computed separately from the actual damages suffered by the copyright owner.
For all infringements involving one work, the award can range fro $500 to $20,000, at the court's discretion.
For willful infringement, statutory damages can rise to as much as $100,000 for every infringement involving one work. (Remember, it is the DESIGN that is copyrighted, NOT the article itself. So if the infringer sells one or one million rugs of the same design, the maximum statutory damage figure is still$100,000.
On the other hand, if the infringer can prove that it was not aware and had no reason to believe its actions were infringing, the court can reduce statutory damages to as little as $200.
The benefit of statutory damages is that no actual losses need be proved in order to prevail.
Court costs can be awarded to the prevailing party. Unlike most litigation in the United States, where each party has to pay it's own lawyer, the Copyright Act provides that attorney's fees can be awarded to the prevailing party, except where the winning copyright owner failed to register its copyright before the infringement commenced.
Public Domain
Designs are in the public domain if they are not protected by a current registration, or common- law copyright. An old Persian rug design is a good example of a design in the public domain. No one owns it and everyone is free to copy it, modify it or use portions of the design, without having to account to the design owner.
Modification of Designs in the Public Domain
The modified or new design which uses portions of the public domain design can be protected under copyright laws as a new design. This assumes, however, that the design is sufficiently changed from the public domain design used as a reference.
Too often, designs which are not in the public domain are copied as if they were. No designs should be copied, modified or used, even in part, unless they are clearly in the public domain.
A copyright lawyer can search for registrations, but common-law protected designs may not be as easily confirmed.
Old, out of print books, are a good source for public domain designs. But, remember the risk is yours if you copy, modify or use any portion of a protected design, even if you assumed it was in the public domain.
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The safe practice is not to copy any design you have seen on a current product. |
Documenting your design process
Whenever a dispute occurs regarding a copyright infringement claim, the issues come down to proving your case.
That means you have to document the development of your design. The documentation should include copies of any photos or sketches used, the source of your design inspiration )a sunset in Milan, and old painting, your mother's antique broach, etc.) And any documentation of such source.
Documentation also needs to include each design draft and alterations to the drafts, copies of any computer programs or applications used, date stamped if possible, printouts, faxes and any other indicia of dating that would support your claims of when your design was produced, where the design was first used and with whom it may have been shared.
Everything and anything that proves how and when created your design is helpful and should also keep a design journal listing your creative activities in connection with the design. Keep all entries dated and attach all sketches to the pages.
Copyright registration creates a public record of a copyright. It is generally not a condition of copyright protection, but there are several advantages to formal registration.
Advantages of registration
(1) Copyright registration creates a public record of the copyright claim.
(2) For U.S. works, registration is generally required to start a lawsuit for copyright infringement.
(3) It estab