COPYRIGHT BASICS

The basis for copyright protection stems directly from the U.S. Constitution. The Framers believed that securing for limited times the exclusive rights of authors to their writings would “promote the progress of science and useful arts.” The primary objective of copyright is to induce and reward authors, through the provision of property rights, to create new works and to make those works available to the public to enjoy. The theory is that by granting certain exclusive rights to creators that allow these creators to protect their creative works against theft, creators receive the benefit of economic rewards and the public receives the benefit of the creative works that might not otherwise be created or disseminated. While the copyright law is intended to serve the purpose of enriching the general public through access to creative work, it is important to understand that the copyright law imposes no obligation upon creators to make their copyrighted works available. As a result, an unpublished work that is never distributed to the public receives the same copyright protection that a published work would receive.

There are three basic requirements that a work must meet to be protected by copyright:

• Originality: To be original, a work must merely be independently created. In other words, it cannot be copied from another. There is no requirement that the work be novel (as in patent law), unique, imaginative or inventive.
• Creativity: To satisfy the creativity requirement a work need only demonstrate a very small amount of creativity. Very few creations fail to satisfy this requirement.
• Fixation: To meet the fixation requirement a work must be fixed in a tangible medium of expression. Protection attaches automatically to an eligible work the moment the work is fixed. A work is considered to be fixed so long as it is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

These three requirements do not present a difficult obstacle to overcome to receive protection. Unlike the requirements for protection under patent or trademark law, very few works that fall within the subject matter of copyright fail to satisfy all three of these requirements.

Significantly, there is no requirement that the copyright owner register the copyrighted work with the U.S. Copyright Office or place a copyright notice on the work to obtain copyright protection for the work.

Copyright protects original works of authorship. Just about anything that can be fixed in a tangible form and constitutes a creator’s expression is protectable under the Copyright Act. A non-exhaustive list of copyrightable subject matter includes:

• Literary Works. This category of works includes things like novels, poems, short stories, periodicals, essays, dictionaries, manuscripts, periodicals and articles. It also includes software, such as smartphone apps, video games and business software.
• Musical Works and Any Accompanying Words. This category of works includes any work that consists of musical notes and lyrics in a musical composition.
• Motion Pictures and Other Audiovisual Works. This category includes, online videos, motion pictures and television shows, video games, and slideshows.
• Sound Recordings. A sound recording is a work that results from the fixation of sounds without a visual component, whether musical or spoken. This category of works includes music on CDs, podcasts, and recorded speeches.
• Pictorial, Graphic, and Sculptural Works. This category of works includes two and three dimensional works of fine, graphic and applied art, photographs, prints and art reproductions, maps, and diagrams.
• Dramatic Works and Any Accompanying Music. A dramatic work is one in which a series of events is presented to an audience by characters through dialogue and action. This category of works includes plays, operas and musicals.
• Pantomimes and Choreographic Works. This category of works includes dances.
• Architectural Works. This category includes not only the architectural plans but also the building and any associated drawings.

In addition to this list of works the copyright law also protects certain compilations and derivative works.

• Compilations. A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole meets the requirements for copyright protection. Compilations includes collective works, like periodicals, anthologies, encyclopedias and other works in which a number of independently copyrightable works are assembled, as well as, other works, like directories and databases, that incorporate and assemble pre-existing materials, data or other information that is not independently copyrightable.
• Derivative Works. A derivative work is a work that is based on one or more preexisting works that has been transformed or modified in some way. For example, an abridged, annotated or revised edition of a book, translations and musical arrangements.

Copyright protection in a compilation or derivative work extends only to the new material contributed by the author of the work and does not extend to either preexisting material included in the compilation or derivative work or any portion of a work that unlawfully incorporates copyrighted preexisting material.

Copyright protection is not available for:

• Procedures, processes and methods of operation;
• Systems;
• Ideas, facts and concepts;
• Principles and discoveries;
• Titles, slogans and other short phrases;
• Lists of ingredients;
• Creations that are not fixed in a tangible form, like an improvisational comedy sketch;
• Information that is comprised completely of common property and no original authorship, like standard calendars, height and weight charts, tape measures and rulers;
• Utilitarian elements of industrial designs (although the expressive elements of the design may be protected, such as a decorative lamp base);
• Familiar symbols or designs, like a “Stop” sign;
• Simple geometrical shapes; and
• Mere variations of typographic ornamentation, lettering or coloring

In some cases, these things might be protectable under patent, trademark or trade secret law. For example, a slogan may be eligible for trademark protection and a process may be patentable subject matter. Also, although an idea, fact or concept itself is not protectable, the expression of an idea, facts or concept, such as in a description, explanation, or illustration may be protectable or as a database of facts. For more on this see the Idea/Expression Dichotomy.

Ideas, facts and concepts are not protectable by copyright. However, the expression of those ideas, facts, and concepts are protectable. For example, anyone may “use” the ideas, facts and procedures in a news article to write their own article that uses their own expression, but, with some exceptions, no one is allowed take the expression used by the author of the article to describe or explain those ideas, facts and procedures. This is what is known as the idea/expression dichotomy. This distinction between what is and what is not protected by copyright encourages people to build freely upon the ideas and information conveyed by someone else while at the same time encouraging the creation and dissemination of the copyrighted work in the first place.

Although it is rare, there are times when the idea and the expression of the idea are so intertwined with one another that there is only one way or very few ways to express the idea. When the idea and expression of the idea merge like this the expression of the idea is not copyrightable. This is what is commonly referred to as the merger doctrine.

Copyright, patent, trademark, and trade secrets are all different types of intellectual property (IP). Although the four types of IP are very different, people often confuse them. A brief description of patents, trademarks and trade secrets, including a brief discussion of how these forms of IP differ from copyright, is provided below.

Patents: The primary goal of the patent law is to encourage innovation and commercialization of technological advances. As a result, similar to copyright law, patent law incentivizes inventors to publicly disclose their inventions in exchange for certain exclusive rights. A patent protects inventions. These inventions can include new and useful processes, machines, manufactures, compositions of matter as well as improvements to these. Certain computer programs may fall within the subject matter protected by both patents and copyrights. In this respect the patent system compliments copyright protection by providing protection for functional aspects of the software, which are not protected by copyright. Unlike with copyright protection, to get patent protection one must first apply for and be granted a patent from the U.S. Patent and Trademark Office (USPTO). Unlike the copyright registration process, the patent application process is expensive, complex, difficult, and time consuming and generally should not be attempted without the assistance of an experienced patent attorney or agent.

Trademarks: A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Examples include brand names, slogans, and logos. (The term “trademark” is often used in a general sense to refer to both trademarks and service marks.) Similar to copyright, a person does not need not register a trademark or service mark to receive protection rights, but there are certain legal benefits to registering the mark with the USPTO. There is rarely an overlap between trademark and copyright law but it can happen — for instance, when a graphic illustration is used as a logo the design may be protected both under copyright and trademark.

Trade Secret: The protections afforded by trade secret law are very different from others forms of IP. Trade secret protection only protects the secret from unauthorized disclosure and use by others. Works that are protected by copyright may also include trade secrets. This most commonly occurs in computer programs and testing materials. The Copyright Office has special procedures for registering computer programs that contain trade secrets. In other instances where a copyrighted work contains a trade secret the applicant can request special relief from the Copyright Office to take steps to ensure that the trade secret is not disclosed in the registration application.

	Copyright	Patents	Trademark	Trade Secret
What’s Protected?	Original works of authorship, such as books, articles, songs, photographs, sculptures, choreography, sound recordings, motion pictures, and other works	Inventions, such as processes, machines, manufactures, compositions of matter as well as improvements to these	Any word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others	A formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known
Requirements to be Protected	A work must be original, creative and fixed in a tangible medium	An invention must be new, useful and nonobvious	A mark must be distinctive (i.e., that is, it must be capable of identifying the source of a particular good)	A trade secret must not be generally known to the public, confers an economic benefit due to its secret nature, and there must be reasonable efforts to maintain its secrecy.
Term of Protection	Author's life plus 70 more years.	20 years	For as long as the mark used.	For as long as it remains secret
Rights Granted	Right to control the reproduction, making of derivative works, distribution and public performance and display of the copyrighted works	Right to prevent others from making, selling using or importing the patented invention	Right to use the mark and to prevent others from using similar marks in a way that would cause a likelihood-of-confusion about the origin of the goods or services.	Right to prevent others from misappropriating, using and disclosing the trade secret.

Generally, a copyrighted work is protected for the length of the author’s life plus another seventy years. In the case of joint works, copyright protection is granted for the length of the life of the last surviving joint author plus another 70 years. Works made for hire, as well as anonymous and pseudonymous works, are protected for a term of either 95 years from the year of first publication or 120 years from the year of creation, whichever is shorter. When the term of protection for a copyrighted work expires, the work enters into the public domain.

Note: If the work was created before 1978, the term of protection may be different. If you are trying to determine the term of protection for a work created before 1978 we suggest you review the Circular relating to term of protection published by the U.S. Copyright Office.

A copyright notice does not need to be affixed to a copyrighted work for the work to be protected under the law.

Prior to 1989 including a copyright notice on a copyrighted work was required under U.S. law, but that is no longer the case. Although copyright notice is no longer required, a copyright owner would be wise to include a copyright notice because it prevents an infringer from raising a defense of innocent infringement.

A proper copyright notice consists of the following three elements.

• © Symbol: Most works should include the © symbol. (Although U.S. law also allows the word “Copyright” or the abbreviation “Copr.”, the © symbol is preferable because it is internationally recognized whereas the other terms may not be). In the case of sound recordings, the ℗ symbol (the letter “p” in a circle) should be used instead.
• Year of Publication: If the work has been published, the year of publication should be included. If the work is unpublished the notice should indicate the unpublished nature of the work in lieu of a year. The year does not need to be included on pictorial, graphic, or sculptural works, with accompanying text, if any, reproduced in or on any useful article, such as greeting cards, stationery, or jewelry.
• Copyright Owner’s Name: The notice should include the name of the copyright owner, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

For example, a proper notice would look like this: © 2016 Copyright Alliance

Where and how to place the notice: The notice should be affixed to copies of the copyrighted work in a way that gives reasonable notice of the claim of copyright. The U.S. Copyright Office has guidelines to help copyright owners determine the manner and location of affixing the copyright notice to different types of works. More information from the U.S. Copyright Office about proper copyright notice can be found here.