Copyright F.A.Q.’s

June 8, 2021

What is a copyright?

A copyright is the right to control and benefit from your works of “artistry” or “authorship”.

What kinds of works may be covered by copyright?

Any of the following:

  • Literary works (books, magazine articles, instruction manuals, etc.)
  • Computer programs and other software (including Web Pages like this one). This includes graphics and icons and the like, which may also be “graphic works”.
  • Musical works (including lyrics, if any)
  • Dramatic works (stage plays, screenplays, speeches)
  • Pantomime and Choreographic works
  • Works of Art: Pictorial works (paintings, photographs, murals), graphic works (maps, architectural plans, advertisements, posters, etchings), sculptures, etc.
  • Motion pictures, TV shows, and other audiovisual works
  • Sound recordings (including the recording itself and the music being performed)
  • Architectural Works (buildings)

How do I copyright my work?

You can’t “copyright” something – “copyright” is a noun, not a verb. We’re not just being picky, here – it’s an important distinction. 

Copyright is something which you have as soon as your work is “fixed in a tangible medium of expression” It isn’t something you have to do. A work is “fixed” when you put it in a form that it can be seen by others (written down / painted / sculpted, etc.).

So I have a copyright already. How do I protect my copyright?

You should do several things:

  • Give the proper notice: be sure to include a “copyright notice” in your work. The copyright notice consists of the “c-in-a-circle” symbol (©) or the word “copyright” (or both), the year (normally, the year of creation or publication), and the name of the copyright owner. If the work has been revised over a period of time, you can list more than one year. For example, a copyright notice for this web page would be:

Note: most internet browsers recognize the special html command ‘(ampersand)copy’ (where (ampersand) is the symbol “&”) and reproduce it as ‘©’ (if you saw that as a c-in-a-circle, your browser is one of them!). To be extra careful, you might want to also spell out the word “copyright”, for browsers which don’t recognize the command. Do not use (c) (c in parenthesis) unless you have no alternative – strictly speaking, (c) does not satisfy the copyright notice requirements. 

© Copyright 2017-2021 Browne Law

  • Where to put the notice: It isn’t critical, so long as it will be noticed by someone who might wonder if the work is under copyright. Look on similar works for examples. 
  • Printed works: the notice is usually on the title page, or on the back of the title page with the Library of Congress information, etc. Many pamphlets put the copyright notice on on the back cover. Periodicals often put a copyright notice on the table of contents page or the page with the publishing information. 
  • Computer programs: put it on the opening screen and on any physical media (CDROM, packaging, etc.). 
  • Graphic and pictorial works: the lower right-hand corner is traditional. 
  • Sculptures and other three dimensional works: put a notice on the base of the sculpture. 
  • Audiovisual works usually have the copyright notice in the opening and closing credits. 
  • Web pages: it couldn’t hurt to put a copyright notice on the first page where browsers are most likely to land, and, if you want to be extra careful, at the bottom of each subsidiary page. 
  • On other works, put the copyright notice someplace noticeable.
  • What if I forget the notice? It’s no longer fatal if you forget, but it is important to include the notice so an infringer can’t claim that his copying was innocent because he didn’t know the work was copyrighted. If you slip on a copy or two, just be sure to put it on later copies.
  • Register the copyright: See the next section.

How do I register my copyright, and what do I need to provide for registration?

Use the Copyright Office’s e-filing system eCO (eelectronic Ccopyright Ooffice). This system allows on-line registration of claims to copyright, and there is a discount in the filing fee for filing through eCO rather than on paper. For more information, and access to eCo, see the Copyright Office’s Registration page.  

You need the following to file the registration application, whichever way you choose to do it:

  • The title of the work
  • The year the work was created
  • If the work was published, the country and the date it was first published
  • For each author:
    • Name
    • Year of birth
    • Year of death, if the author is dead, and
    • Citizenship or domicile
    • Note that if the work was a “work for hire” (i.e. created by an employee in the course of his or her employment), the author is the employer (in which case, there is no date of birth, obviously)
    • What part of the work was created by the author
  • For each copyright claimant (owner of the copyright):
    • Name
    • Address
    • If the claimant is not the author, an explanation of how the claimant obtained the copyright (for example, by assignment from the author)
  • If any part of the work was previously registered, what part of the work was it, what was the registration number and when was the part registered?
  • (Optional) Who should someone contact regarding permission to use the work?
  • Where should the Registration Certificate be mailed?
  • A copy of the work to be registered, or “identifying material” for those works which can’t actually be filed themselves (like sculptures or other three-dimensional works). If you’re filing through eCO, the copy is uploaded electronically – for a text work, PDF is the preferred format; for a photograph, JPG or PDF format would be preferred.  
  • The applicable Copyright Office filing fee.

Is there anything which can not be protected by copyright?

Yes – the following are not protectable by copyright:

  • “Functional elements”: You could register a copyright for the description of a machine. This would protect only the description itself -there is no copyright protection for the machine or its operation. The machine is protected, if it can be at all, by patent.
  • Titles, names, short phrases and slogans cannot be protected by copyright. These might be protected by trademark under some circumstances. There is nothing in copyright to stop you from writing a book entitled “Gone With The Wind” (although you could not copy the plot of Margaret Mitchell’s novel). However, MGM might object on trademark grounds.
  • Blank Printed forms, as such, are not protectable by copyright. The arrangement of written matter, instructions, graphics, etc., might be, however.
  • Designs of useful objects: Design patent is the proper form of protection, if available. However, you can claim copyright on artwork applied to a useful object (i.e. a painting of Scarlett O’Hara on a plate).
  • Ideas, themes, subjects, are not protectable – only the expression of ideas. This gets rather vague – contact an attorney (might we suggest one at Brown & Michaels?) if you have any specific questions.

·  “Scenes a faire:” Elements of a story that are dictated by the requirements of a setting or genre are not protectable. 

For example, many, if not most, science-fiction epics take place in space, with all that implies. If you wrote a story in 1962 in which a crew of explorers in a spaceship meet aliens, use transporters and shuttle craft, and so on, you can’t sue the writers of Star Trek because they use the same elements. Civil War novels might be expected to involve battles, brother fighting brother, etc. Contact an attorney (preferably one here at Browne Law) if you have specific questions.

  • Characters in the abstract are not protectable by copyright.  Drawings of characters can be protected as artwork or stories about the character protected as literature, of course, but that would protect the pictures or the story, rather than the character, as such. In order to be protectable by copyright, a character:

1) must be more than a simple stock character – this is similar to the “scenes a faire” concept. As described in the case Gaiman v. MacFarlane 360 F.3d.644, which dealt with a conflict over some characters from the popular Spawn series of comics: 

“… a drunken old bum is a stock character. … If a drunken old bum were a copyrightable character, so would be a drunken suburban housewife, a gesticulating Frenchman, a fire-breathing dragon, a talking cat, a Prussian officer who wears a monocle and clicks his heels, a masked magician, … , and, in Learned Hand’s memorable paraphrase of Twelfth Night, “a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress.”…. It would be difficult to write successful works of fiction without negotiating for dozens or hundreds of copyright licenses, even though such stereotyped characters are the products not of the creative imagination but of simple observation of the human comedy.”

2) must be sufficiently “fleshed out” – carefully delineated and described (and/or drawn, as in Gaiman v. MacFarlane‘s Spawn characters). Again, from the Gaiman case opinion:

“Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a specific name and a specific appearance. Cogliostro’s age, obviously phony title (“Count”), what he knows and says, his name, and his faintly Mosaic facial features combine to create a distinctive character. No more is required for a character copyright. … As long as the character is distinctive, other authors can use the stock character out of which it may have been built without fear (well, without too much fear) of being accused as infringers.”

Locating the dividing line between infringing on the copyright to a work and copying the unprotectable elements of a character is not easy to determine. 

As an example, if you were to write a brief proposal saying, “I envision a crime-fighting reptile. He’ll wear a mask and a cape and fight evildoers of all kinds”, that character would not be protectable by copyright, whatever else he or she might be.  

If you went further to write a story about a character “Itzhak Iguana” who is a mutant iguana who wears a yarmulke, lives in a kibbutz, eats only matzo ball soup, and fights crime by quoting the Talmud until the bad guys die of confusion, the character himself might have sufficient creative distinctiveness to be protectable by copyright. You could claim that any other work about a Talmud-quoting mutant iguana is a “derivative work” and infringes your copyright. If a toy company comes out with a yarmulke-wearing iguana doll with a voice synthesizer which produces Hebrew when you push a button, you might claim it infringes your copyright as a derivative work (especially if it looks just like the illustrations in your book). Of course, if you wrote and marketed a series of books, you might also have a claim under trademark infringement, too.

This would not allow you to sue “Teenage Mutant Ninja Turtles” on the grounds that you have created the idea of a reptile (amphibian?) who fights crime, though. 

Trademark protection might be available for a character once the characters have been used in commerce through sales of a book, movie, comic, etc. (Or, better yet, in a series of books, comics or movies – usually trademark protection is not available after a single work).

Contact an attorney here if you have specific questions.

  • Facts: You cannot claim rights in facts which are there for all to discover, even if you were the first to discover them. All you can protect is an arrangement of facts, if there’s any originality in the arrangement. This comes up most often in “yellow pages” cases, where the telephone listings, themselves, are simply facts, but the telephone company has a copyright in the arrangement of numbers embodied in the telephone book. Similarly, anyone can publish a map of New York, but you can’t copy Rand McNally’s colors, symbols, legends, etc.
  • Recipes: This is a special situation which comes up frequently. Recipes are considered to be either functional descriptions (lists of ingredients) or lists of facts (what’s in a dish), and thus are not protectable under copyright, as such. Collections of recipes with preliminary notes and descriptions (i.e. a cookbook) are protectable, however, even if the individual recipes are not. The Copyright Office has a special form letter (FL122) about protection of recipes.
  • US Government Publications are not covered by copyright. Feel free to copy them.

What specific rights does my copyright give me?

A copyright gives you the right to stop others from:

  • Copying or reproducing your work directly
  • Making new works based on your work (these new works are called “derivative works”)
  • Selling or distributing copies of the work
  • Performing or displaying the work publicly
  • Building based on copyrighted plans (e.g. architectural drawings)
  • Destroying, altering or removing copyrighted artwork built into buildings, under some circumstances. (This is not really copyright, as such, but it is related protection under a different law)

Who owns a copyright?

The “author” of a work owns the copyright initially. The “author” may be the actual person who created the work, or his or her employer if the work is “made for hire.” Under some circumstances, the person who contracts with another to create a work is the “author” under the “made for hire” doctrine if the contract explicitly contains “work for hire” language.

Note: the question of whether or not a work is “for hire” is important and technical. Consult an attorney before beginning or contracting for a copyrightable work to be sure you will own what you think you will own.

How long does my copyright last?

For anything you create today (or which was created since 1978), the copyright will last for the author’s life, plus 70 years. For works made for hire, the term is 95 years from publication, or 120 years from creation, whichever expires first. For works created before 1978, you’ll need to check the specifics.

I want to use someone else’s work.
How can I tell if it’s still covered by copyright?

If the work was created after 1977, it is covered by copyright, unless the author specifically put it in the public domain.

If it was created before 1978, the status of the work will depend on when it was first published if it was published with proper notice if the copyright was registered properly, if the copyright was renewed on time (for works published before 1963), and other factors.

In general, the only works you can safely assume are in the public domain are those which were first published before 1922, those which specifically say they are in the public domain, and government publications.

Works created before 1978, and never published or registered present special problems. Under the current law, copyright in these works persists for the life of the author plus 70 years, or December 31, 2002, whichever is later. Ownership of the original of a work, however, is not the same as ownership of the copyright – that remains in the author, or his estate. Therein lies the problem.

As an example, suppose you would like to publish the letters of a soldier who died in the D-Day landings in World War II (June 6, 1944). The author may have died over 60 years ago, but someone still owns the copyright until December 31, 2014 (the last day of the calendar year, seventy years after the soldier’s death in 1944). Since the copyright is unlikely to have been explicitly assigned, it’s probably owned by the heirs of the soldier – who may not be the people who own the physical letter.

It’s best to consult with an experienced copyright attorney (one at Brown and Michaels, preferably) for specific legal advice about the specific facts of your situation.

OK, the work’s under copyright. Can I still use it?

Some use of copyrighted material is excused because it is “fair use“. This includes quoting from a copyrighted work for the purposes of scholarship or research, comment or criticism, news reporting, or teaching (including multiple copies for classroom use). Thus, it would be acceptable for an article on Richard Nixon to quote from his memoirs (“On page 238, Nixon states, ‘I am not a crook!’ “) to prove a point (perhaps that he was, or was not, a crook). It might not be acceptable to reprint the entire chapter from which the quote came, however.

The Copyright Law gives four factors to consider in deciding if something is “fair use” (17 U.S.C.O.. 107):

  • The purpose and character of the use (is the use commercial or nonprofit educational? Is it one of the listed uses? How much have you changed or adapted the work?)
  • The nature of the copyrighted work (is the work worth protecting?)
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole (You must only use so much of the copyrighted work as is necessary and reasonable to accomplish your purpose. The more of the work you use, the less likely it is that your use is “fair”); and
  • The effect of the use on the potential market for or value of the copyrighted work (i.e. will your use replace the copyrighted work in the marketplace? Will it reduce the market for derivative works?)

The “fair use” test is not a hard and fast rule which says “copying 38% of the work is OK, 39% is no good”, and each case must be looked at on its own merits. You also need to bear in mind that the whole question of “fair use” does not arise until you are doing something which would otherwise be an infringement of copyright, so as soon as you start thinking “fair use” you’re potentially in trouble. 

Stanford University has a Fair Use web page that provides an in-depth analysis of the issue. 

There are other exceptions in sections 107-122 of the Copyright Law which permit some otherwise infringing acts, for example the “face-to-face teaching” exception which allows showing videos in classrooms under some circumstances, or an exception for making recordings or broadcasts of nondramatic literary works for the blind, etc. These exceptions are very limited and technical – if you think your use might fall under one of these exceptions, we strongly recommend checking with an experienced copyright attorney (at Brown & Michaels, for example). 

In the end, the best approach is not to use copyrighted material without permission, and never give rise to the question “was your use fair use?” The last thing you need is to become famous as a landmark court case, win or lose.

I’m going to use it anyway – what’s the worst that could happen? 

If you are infringing a copyright, the owner of the copyright is entitled to any or all of the following remedies:

  • An injunction, preventing you from selling your work. (17 USC 502)
  • Impounding and destruction of infringing articles (17 USC 503)
  • Money Damages: (17 USC 504) the copyright owner may be awarded either:
    • the owner’s actual damages (his lost profits) plus your profits; or
    • statutory damages of not less than $750 or more than $30,000 for all infringements involved in the action, with respect to any one work. This may be increased up to $150,000 per work, if the court finds that the infringement was “willful”. Statutory damages may be awarded whether or not the copyright owner has sustained any monetary loss at all, and whether or not you have made any profits or sold any copies. Statutory damages are what the recording industry relies on in their well-publicized lawsuits for many tens of  thousands of dollars against those who illegally share music files over the internet. 
  • Court Costs and Attorney’s Fees (17 USC 505)
  • Criminal Penalties (17 USC 506 and 18 USC 2319)
    • Imprisonment for up to 5 years (10 years for a second offense)
    • Fines as set forth in Title 18 of the US Code
    • Fines of up to $2,500 are also available under 17 USC 506 for Fraudulent Copyright Notices, Fraudulent Removal or Alteration of a Copyright Notice and False Representations in applying for a copyright registration. 

There is a three-year statute of limitations for civil copyright infringement actions, and a five-year statute of limitations for criminal copyright infringement. 

I’ve found a book which is in the public domain.
Who do I need to contact to get permission to copy it?

No one. That is the definition of “public domain” – it belongs to the public.

Great! So how do I register my copyright in it?

You can’t. Once something is in the public domain, it is in the public domain and anyone can copy it. If you add anything to it, like commentary or new illustrations, or the like, you can claim copyright in what you added. The basic work remains in the public domain, however.

Can I base a new work on a public domain work and claim copyright in that?

Sure, although that does not affect the status of the old work. For example, there is no question but that West Side Story was an original work and worthy of copyright for both the book and the music, for all that it was based on Romeo and Juliet. The science-fiction classic Forbidden Planet was based on Shakespeare’s The Tempest, but is clearly independently protectable under copyright, and so on. A new translation of the Bible is protectable insofar as the translation is concerned, but the protection would not extend to the underlying work in Aramaic or Greek, or to the stories and characters, which are in the public domain.

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