Copyrights stand for between 50 and 100 years from the creator's death if the creator is an individual, and a shorter time if the creator is a corporation. Copyrights can apply to many different products, including literary works, film, audio, drawings, and software. While copyright law is not all-encompassing, other laws (such as patent and trademark laws) may impose additional sanctions.
What Is Copyright?
Copyright is a form of protection provided by the laws of the United States (Title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act gives the owner of copyright the exclusive right to do and to authorize others to do the following:
reproduce the work in copies or phonorecords
prepare derivative works based upon the work
distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work
perform the work publicly (in the case of sound recordings*) using a digital audio transmission
In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, see Circular 40, Copyright Registration for Works of the Visual Arts. It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 122 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.
*NOTE: Sound recordings are defined in the law as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Common examples include recordings of music, drama, or lectures. A sound recording is not the same as a phonorecord. A phonorecord is a physical object in which works of authorship are embodied. The word “phonorecord” includes cassette tapes,CDs, and vinyl disks as well as other formats.
Who Can Claim Copyright?
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:
a work prepared by an employee within the scope of his or her employment; or
a work specially ordered or commissioned for use as:
a contribution to a collective work
a part of a motion picture or other audiovisual work
a supplementary work
an instructional text
answer material for a test
If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
The authors of a joint work are co-owners of the copyright in the work unless there is an agreement to the contrary.
Copyright in each separate contribution to a periodical or another collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.
Copyright and National Origin of the Work
Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author.
Published works are eligible for copyright protection in the United States if any one of the following conditions is met:
On the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party,* or is a stateless person wherever that person may be domiciled; or
•The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. For purposes of this condition, a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be; or
The work is a sound recording that was first fixed in a treaty party; or
The work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA). See Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA-GATT), for further information.
The work comes within the scope of a presidential proclamation.
*A treaty party is a country or intergovernmental organization other than the United
What Works Are Protected?
Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device.
Copyrightable works include the following categories:
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”
What Is Not Protected by Copyright?
Several categories of material are not eligible for federal copyright protection. These include among others:
works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
How to Secure a Copyright
Copyright Secured Automatically upon Creation
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or another action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration.
Copyright is secured automatically when the work is created, and work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm.
“Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CD s, or vinyl disks. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or phonograph disks (“phonorecords”), or both. If a work is prepared over a period, the part of the work that is fixed on a particular date constitutes the created work as of that date.
Publication is no longer the key to obtaining federal copyright as it was under the Copyright Act of 1909. However, publication remains important to copyright owners.
The 1976 Copyright Act defines publication as follows:
“Publication” is the distribution of copies or phonorecords of work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display constitutes publication. A public performance or display of work does not of itself constitute publication.
NOTE: Before 1978, federal copyright was secured by the act of publication with notice of copyright, assuming compliance with all other relevant statutory conditions. U. S. works in the public domain on January 1, 1978, (for example, works published without satisfying all conditions for securing federal copyright under the Copyright Act of 1909) remain in the public domain under the 1976 Copyright Act. Certain foreign works originally published without notice had their copyrights restored under the Uruguay Round Agreements Act (URAA). See Circular 38b and see Notice of Copyright section on page 4 for further information. Federal copyright could also be secured before 1978 by the act of registration in the case of certain unpublished works and works eligible for ad interim copyright. The 1976 Copyright Act automatically extended copyright protection to full term for all works that, as of January 1, 1978, were subject to statutory protection.
Notice of Copyright
The use of a copyright notice is no longer required under U. S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.
The notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989. Although works published without notice before that date could have entered the public domain in the United States, the Uruguay Round Agreements Act (URAA ) restores copyright in certain foreign works originally published without notice. The Copyright Office does not take a position on whether copies of works first published with notice before March 1, 1989, which are distributed on or after March 1, 1989, must bear the copyright notice.
Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law. Innocent infringement occurred when the infringer did not realize that the work was protected.
The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.
Form of Notice for Visually Perceptible Copies
The notice for visually perceptible copies should contain all the following three elements:
The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”; and
The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a known alternative designation of the owner.
Example: © 2011 John Doe:
The “C in a circle” notice is used only on “visually perceptible copies.” Certain kinds of works—for example, musical, dramatic, and literary works—may be fixed not in “copies” but using sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are “phonorecords” and not “copies,” the “C in a circle” notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded.
How Long Copyright Protection Endures
Works created on or after January 1, 1978
A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.
Works created Before January 1, 1978 (But Not Published or Registered by That Date)
These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120-year terms apply to them as well. The law provides that in no case would the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.
Transfer of Copyright
Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.
Copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. For information about relevant state laws, consult one of our professionals.
Transfers of copyright are normally made by contract. The Copyright Office does not have any forms for such transfers. The law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties. For information on recordation of transfers and other documents related to copyright, see Circular 12, Recordation of Transfers and Other Documents.
Termination of Transfers
Under the previous law, the copyright in a work reverted to the author, if living, or if the author was not living, to other specified beneficiaries, provided a renewal claim was registered in the 28th year of the original term.* The present law drops the renewal feature except for works already in the first term of statutory protection when the present law took effect. Instead, the present law permits termination of a grant of rights after 35 years under certain conditions by serving written notice on the transferee within specified time limits.
For works already under statutory copyright protection before 1978, the present law provides a similar right of termination covering the newly added years that extended the former maximum term of the copyright from 56 to 95 years. For further information, see circulars 15a and 15t.
*NOTE: The copyright in works eligible for renewal on or after June 26, 1992, will vest in the name of the renewal claimant on the effective date of any renewal registration made during the 28th year of the original term. Otherwise, the renewal copyright will vest in the party entitled to claim renewal as of December 31st of the 28th year.
Who May File an Application Form?
The following persons are legally entitled to submit an application form:
The author. This is either the person who created the work or if the work was made for hire, the employer or another person for whom the work was prepared.
The copyright claimant. The copyright claimant is defined in Copyright Office regulations as either the author of the work or a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author. This category includes a person or organization who has obtained by contract the right to claim legal title to the copyright in an application for copyright registration.
The owner of exclusive right(s). Under the law, any of the exclusive rights that make up a copyright and any subdivision of them can be transferred and owned separately, even though the transfer may be limited in time or place of effect. The term “copyright owner” on any one of the exclusive rights contained in a copyright refers to the owner of that particular right. Any owner of an exclusive right may apply for registration of a claim in the work.
The duly authorized agent of such author, other copyright claimant, or owner of exclusive right(s). Any person authorized to act on behalf of the author, other copyright claimant, or owner of exclusive rights may apply for registration.
There is no requirement that applications be prepared or filed by an attorney.