Copyright is one of the three recognized intellectual property categories, along with patents and trademarks. In the United States, copyright law is governed by 17 U.S.C. §§ 101-1101, often referred to as the Copyright Act.
Copyrights provide an important purpose for artists and other creators: the protection of creative expression. As the name suggests, it gives the holder the right to determine who can reproduce their creation, or allows them to bar reproduction altogether.
The United States Patent and Trademark Office defines copyright as a form of protection provided by U.S. law to authors of “original works of authorship” fixed in any tangible medium of expression. The subject matter of a copyright can include:
- Literary works
- Dramatic works
- Musical works
- Artistic works
- Audiovisual works
- Architectural works
Notably, a work doesn’t have to have any artistic merit, legality, or truthfulness to receive copyright protection. The work just has to be considered an original work.
Additionally, the work doesn’t have to be published for copyright protection. The Copyright Act provides the copyright owner with the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display the work. If someone violates these rights, the copyright owner can sue for infringement.
Are copyrights the same as patents and trademarks?
While copyrights, trademarks, and patents all fall under the overall “intellectual property” umbrella, each one covers different things.
As discussed above, a copyright protects an artist’s original work from being reproduced, distributed, displayed, or performed without the permission of the copyright owner. Copyrights protect original novels, musical numbers, photographs, or any other original work of art that exists in a tangible medium of expression.
A patent, on the other hand, protects technical inventions, mechanical processes, or machine designs that are new, unique, and usable in some type of industry. Obtaining a registered patent safeguards the invention or processes from being copied, sold, created, or used without the inventor’s consent. The technicality of patents means that acquiring or protecting one often takes the help of a specialist, such as a patent lawyer.
A trademark protects a word, phrase, design, or combination thereof that identifies goods or services, distinguishes them from the goods or services of others, and indicates the source of those goods or services. Registering your trademark helps protect your brand, prevents others from registering the same trademark without your permission, and helps you prevent others from using the trademark in the course of their business.
How is a copyright created?
Copyright is created automatically upon the creation of an original work. In fact, there is no publication, registration, or other action required through the Copyright Office to secure a copyright.
Nevertheless, having a registered copyright is highly recommended. Below are some benefits of registering your copyright with the Copyright Office:
- Registration establishes a public record of the copyright claim.
- If made before or within five years of publication, registration establishes prima facie evidence (that is, there is enough evidence to establish a fact or presumption unless disproved or rebutted) in court of the validity of the copyright and the facts stated in the certificate.
- If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney fees will be available to the owner of the copyright. Otherwise, only an award of actual damages and profits is available.
- The owner of the copyright is allowed to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
- You cannot file an infringement lawsuit without first registering your copyright.
To register a copyright with the Copyright Office, you must submit an application for copyright registration, pay the filing fee, and deposit a copy or copies of the work being registered with the Copyright Office.
How long does copyright protection last?
The length of time copyright protection lasts depends on a number of factors, including:
- When the work was created;
- Who created the work;
- Whether multiple artists created the work; and
- Whether the work was created at the direction of a company.
For works created by an individual after January 1, 1978, copyright protection begins at the moment of creation and lasts for 70 years after the artist’s death. In the case of multiple artists, the copyright protection extends 70 years after the last surviving artist’s death.
For anonymous works, those created by an entity, works for hire, or those created under a pseudonym, copyright protection lasts for either 95 years from the date of publication or 120 years from the date of creation, whichever term is shorter.
What constitutes copyright infringement?
As a general rule, the reproduction, distribution, performance, or public display of a copyrighted work without the permission of the rightful copyright owner will constitute copyright infringement. If someone infringes on your valid copyright, you may have a claim for damages.
However, there are some important defenses to copyright infringement to be aware of. Examples of copyright infringement defenses include:
- Innocent infringement
- Fair use
- Independent creation of the work without copying
- Use of the work under a license agreement
- Abandonment by the copyright owner
If you’re accused of infringing a valid copyright, these and other defenses may be available to you.
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If you’re the owner of a small business, don’t forget to take action to protect your intellectual property rights. In many cases, intellectual property is just as important to your business as your other physical property and assets.
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- Do I need an attorney to file for a copyright?
No, you don’t need an attorney to file for a copyright, though having one could be helpful. However, if you are sued or plan to sue for copyright infringement, you probably want to consider consulting with legal counsel.
- What might constitute copyright infringement?
There are countless scenarios in which copyright infringement might occur. For example, using video created by another in an ad, posting copyrighted images on your social media, and publicly playing copyrighted music inside your business all might constitute copyright infringement.
- What remedies are available for copyright infringement?
The Copyright Act provides for the recovery of statutory damages of not less than $750 for copyright infringement. Additionally, victims of copyright infringement may sue for actual damages and profits of the infringer.
- Can someone lose a copyright?
Yes, someone can lose a copyright. Copyright protection only lasts for a specific term. After the expiration of the copyright term, the work will fall into the public domain for use without restrictions by the public at large.
- How much does it cost to file for a copyright?
Fees for copyright registration currently range from $35 to $500, depending on a number of factors. However, these fees are subject to change, so you might want to check periodically at Copyright.gov.
- How long does a copyright last?
As discussed above, the length of a valid copyright will depend on a number of factors. Generally, however, a copyright will last until 70 years after the death of the author or 120 years from the date of creation of the work.
Disclaimer – The content on this page is for informational purposes only, and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.