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Understanding Copyright

by Daniel Steven

Copyright.  The word stirs up almost as much angst as an IRS audit.  Ask most writers to explain the difference between “common law” and “statutory” copyright and you’ll get a blank look; throw in e-publication rights and watch their eyes spin.

It doesn’t have to be this way.  Copyright is not rocket science, and you should understand that it is your stock-in-trade, the core of your livelihood.  Copyright prevents others from copying or publishing all, or a substantial part, of any your original work¾poetry, books, stories, movies, songs, paintings, web sites, computer software, photographs and images.

In this Legal Corner, we’ll review frequently asked questions about copyright law.  In future columns, we’ll discuss work-for-hire, fair use, and electronic rights. 

What is “Statutory” Copyright? 

Statutory copyright protection is provided by Title 17, U.S. Code, and is available both to published and unpublished works.  Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

·       to reproduce the work in copies or electronic form;

·       to prepare derivative works based upon the work;

·        to distribute copies (electronic or paper) of the work to the public by sale, rental, lease, or lending; and

·        to perform or display the work publicly.

What is “Common Law” Copyright?

Before the effective date of the 1976 Copyright Act, state and federal common law (judicial decisions) protected all works until publication, which was the event triggering protection under the pre-1976 federal Copyright Act.  The 1976 Act eliminated federal common law copyright as of January 1, 1978.  All works created after that date are protected from the moment of creation (see below), rather than from the date of publication.  "Unfixed" works (e.g., unrecorded lectures) remain one of the few remaining categories of works that, in some circumstances, are protected by state common law

How Do I Claim Copyright Protection?

This is probably the most frequently misunderstood element of copyright law.  Many writers still believe that a formal copyright registration is required, and/or that a work must first be published to qualify for copyright protection.  Not so!  Under the 1976 Act, copyright is automatic when the work is created, and a work is "created" when it is fixed in a copy or recorded for the first time (e.g., the instant you lift pen from paper or your word processing software saves to disk).  Publication is no longer the key to obtaining federal copyright. (Before 1978, federal copyright was generally secured by the act of publication with notice of copyright.)  When a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.

What Can NOT Be Copyrighted?

You can’t copyright ideas, titles, names, short phrases, and slogans, no matter how original or unique (some of these can be trademarked, but that’s another story).  Also procedures, designs, concepts, charts and tables of common authorship, etc.

Do I Need A Notice of Copyright?

Nope, the use of a copyright notice is no longer required under U. S. law.  Nevertheless, you should use it.  A copyright notice informs the public that your work is protected by copyright, identifies you, and shows the year of first publication.  In the event your work is infringed and it has a notice, the infringing party may not claim "innocent infringement" and avoid paying damages.  The use of the copyright does not require advance permission from, or registration with, the Copyright Office.

What Should My Notice Contain?

The copyright notice on "visually perceptible copies" (i.e., print, web pages, computer text files) 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; and

• Your name, or an abbreviation by which your name can be recognized, or a generally known alternative designation of the owner.

Example: © 2001John Doe

How Long Does My Copyright Last?

For works originally created on or after January 1, 1978, the work is automatically protected from the moment of its creation for the author's life plus an additional 70 years after the author's death. 

Can I Transfer My Copyright?

Yes. A copyright is personal property and may be transferred by gift or for a fee, and may be bequeathed by will or pass as personal property by the applicable state laws of intestate succession.

Should I Register My Copyright?

It depends. As noted above, registration isn’t necessary to obtain copyright protection, although registration is a prerequisite to filing a copyright infringement suit.  In addition, the law confers certain benefits to copyright owners who formally register, specifically additional money damages and attorney's fees will be available to the copyright owner in court actions.  Book-length works are generally registered at publication; shorter works are seldom registered unless there is an infringement.

When Can I Register?

Registration may be made at any time within the life of the copyright.  Unlike the law before 1978, once a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published.  Usually this is done only if the work is substantially altered in its published form.

Is My Copyright Protected in Other Countries?

In most cases, yes.  Although there is no such thing as an "international copyright,” most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.

© Daniel Steven 2001

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© 2006, Daniel N. Steven
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