COPYRIGHT LAW MYTHS DEBUNKED
Some “myths” regarding copyright law still exist in the public discourse. Here are the facts that dispel these myths, hopefully for good (note that all of these are questions from past clients):
“Poor Man’s Copyright.”
Placing a copy of a work in an envelope and mailing it to one’s self has been dubbed a “poor man’s copyright”. According to the legend, the postmark proves that the addressee is the copyright holder based on possession of the work as of the postmarked date, thereby hopefully predating any would-be infringer’s claims in the work. This is patently false – this practice is not mentioned, acknowledged, or condoned anywhere in the copyright statutes (17 U.S.C. §101 et. seq), and has never been ratified or accepted by any court. In addition, for reasons of authentication and reliability, any evidence of a “poor man’s copyright” as an offer of proof would most likely be inadmissible into evidence before a court.
“I have a great idea I would like to copyright.”
Unless your “idea” falls within one of the categories of works protected under 17 U.S.C. §102(a) AND has been reduced to some tangible medium of expression, you cannot copyright an idea. 17 U.S.C. §102(b) prohibits copyright protection for ”…any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” However, your “idea” can be as simple as an original melody, poem, or drawing and still be protected by copyright law as long as it is fixed in a tangible medium of expression. For example, recording your musical composition to a CD or writing your poem on a napkin both qualify as fixing these works in tangible mediums of expression.
“I want to copyright the name of my business.”
Business names or slogans associated with goods or services are potentially the subject of trademark protection, not copyright law. According to the U.S. Copyright Office, the names of products, services, businesses, organizations, or titles of works, catchphrases, slogans or short advertising expressions “cannot be protected by copyright.” Therefore, you cannot copyright a name. However, a logo for your business that is associated with goods or services can be protected under copyright law as a pictorial or graphic work AND under trademark law as well. Your IP portfolio will be assessed in your 30-minute consultation to determine whether you have any assets that might be protectable under both copyright and trademark law.
“Putting a © symbol on my work will protect it under copyright law so I don’t need to register.”
Although the notice of copyright symbol (“©”) can yield important benefits to a copyright owner, it does not in and of itself confer any rights under copyright law without a certificate of registration. If your registered work was infringed, and copyright notice was affixed properly to copies of the work, the defendant cannot be considered an “innocent infringer”, which may entitle you as the copyright owner to enhanced statutory damages.
“The U.S. Copyright Office basically rubber stamps registrations it receives, so as long as I pay the fee I don’t have to worry too much about what I submit.”
Although the process of filing a copyright registration is straightforward, the U.S. Copyright Office does not automatically issue certificates, see §410(b). In addition to observing the statutory formalities (application, submitting deposit materials and paying the fee), your creation must be an “original” work of authorship. Although the “originality” required only needs to demonstrate a minimal level of creativity, works are sometimes denied registration for failure to meet this standard.
“The U.S. government pays the costs for you to enforce your copyright.”
The U.S. government will not pay for the costs incurred while enforcing your copyright in court. However, a court may enter a judgment saying that a defendant who loses a copyright infringement action must pay the plaintiff’s costs and attorneys’ fees if the plaintiff’s work was registered promptly.
OVERVIEW OF COPYRIGHT LAW
Copyright protects “works of authorship” of songwriters, artists, and other authors from infringement. Although copyright in a work exists once it is fixed in a “tangible medium of expression”, the exclusive rights belonging to a U.S. copyright owner cannot be enforced in court until a copyright registration is filed and approved by the U.S. Copyright Office. Once a certificate of copyright registration has been issued for a work, the author, and any licensees or transferees of the work, may sue for copyright infringement in a federal district court to enforce their rights.
TYPES OF WORKS COVERED BY COPYRIGHT LAW
Copyright protects many familiar types of works such as musical compositions and sound recordings, literary works (text in books, magazines, etc.), motion pictures, and paintings, and works that may not be as familiar, such as jewelry designs, architecture, choreography, and computer programs.
BUNDLE OF RIGHTS & OTHER BENEFITS OF COPYRIGHT OWNERSHIP
The exclusive rights of a copyright owner can be thought of as a “bundle of rights” which may be licensed individually or together. Specifically, the rights are:
- Reproduction: to reproduce the copyrighted work in copies in any form.
- Distribution: to distribute copies of the copyrighted work by sale or any other transfer of ownership, or by renting, leasing, or lending.
- Public Display: to display the copyrighted work publicly (for example, pictorial, graphic, or sculptural works).
- Public Performance: to perform the copyrighted work in public (for example, musical compositions or choreography, or sounds recordings via digital audio transmission).
- Derivative Works: to prepare derivative works based upon the copyrighted work.
In addition to these exclusive rights, owners of registered copyrights also have a number of important remedies available once copyright infringement is proven in a court of law. If registration was made promptly, and the copyright infringement was willful, statutory damages of up to $150,000 may be awarded, as well as attorney fees and the costs of litigation. Other valuable remedies available to registered copyright owners include injunctions (orders from a court for a defendant to stop infringing) and court orders for the impounding and destruction of infringing materials or implements used to create infringing products.
