What is a Copyright

Mark E. Stein, Esq.

Board Certified Intellectual Property Attorney

Mark Stein Law

Copyright is accorded to original works of authorship of literature, drama, music, sculpture, computer programs, sound recordings, film, photography, and works of fine art. Copyright gives the owner the exclusive right to reproduce, distribute, sell, perform, or publicly display the copyrighted work and to prepare derivative works therefrom.

In order to obtain copyright protection, a work must be original and fixed in a tangible medium of expression. To satisfy the originality requirement, the author must have engaged in some form of intellectual endeavor, and not mere copying, and must exhibit some form of creativity. Further, in order to be deemed “fixed in a tangible medium”, the work must be created on something sufficiently permanent to be perceived, reproduced, or otherwise communicated for a sufficiently long duration.

Copyright protection begins automatically as soon as the work is created. In other words, the author need not register the work in order to achieve copyright protection. However, in order to initiate a copyright infringement suit, registration is required. To achieve maximum protection, a copyright should be registered within three months after publication, to enable the copyright owner to maintain the right to recover statutory damages and attorney’s fees.

If, within the scope of his or her employment, an employee creates a copyrightable work, the employer is deemed the owner of the copyright. If, however, the creator of the work is an independent contractor or if the work is commissioned, the copyright will belong to the creator of the work. If you are hiring another to create a work of potentially copyrightable subject matter on your behalf, it is critical that you discuss ownership issues with counsel skilled in copyright matters.

There are three elements required for copyright notice. These elements are: (1) the word “copyright” or an approved variation (including the symbol© , (2) the name of the copyright owner, and (3) the year of first publication. When notice is placed on copies of a copyrighted work, it must “be affixed to the copies in such a manner and location as to give reasonable notice of the claim of copyright.” It is not longer necessary to use the copyright notice, but doing so can affect the amount of damages recoverable for infringement by precluding a defense of “innocent infringement”.