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A work is considered to be "fixed" when it is in a form "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 

To be original an "author must have engaged in an original activity of creativity". 

Copyright is a very viable protection form for business and the materials that they create.  This is especially true for software.  Copyrights should not be confused with patents.  The two formats offer different types of protection, protect different subject matter and are obtained in entirely different ways.  Simplistically speaking, unlike patents, copyrights do not protect the idea itself but only how a person expresses that idea.  In case your mind is racing to make a distinction, don't ask what is an idea and what is an expression of that idea or how these two are properly distinguished.  The answer to this question sometimes requires a great deal of analysis and involves the particular factual scenario associated with the subject matter.  Be satisfied that this answer can only be provided on a case-by-case basis.

Duration of Copyrights

Due to the lengthening of the term of copyright protection from the 1909 Act, 28 years plus 28 years renewal, to the 1976 Act, life of the author plus 50 years, a number of various scenarios developed.   The duration of a copyright under the Copyright Act of 1976 depends upon what the status of the work was on the effective date of the Act, January 1, 1978.

The copyright for a joint work lasts for the life of the last surviving author plus 50 years.

The copyright for a work for hire is a terms of  75 years from the date of first publication, or a term of one hundred years from the year of its creation, which expires first.

Works created anonymously or pseudonomously are given a duration of 75 year after first publication or 100 years after creation, whichever expired first.

The Rights under Copyright

The Copyright Act gives the owner of the copyright the exclusive rights to do and to authorize any of the following:

Not only is the copyright owner given the exclusive right to do the above actions, but also, to authorize others to do them.  These rights last only so long as the duration of the term for the particular type of copyright at issue.

Moral Rights

Moral rights are additional rights under copyright which pertain primarily the visual arts. Only the creator artist is entitled to hold the following rights:

The creator artist may claiming authorship in the work in order:

Derivative Works

A derivative work is a work which is based upon and derived from one or more pre-existing original works.  Derivative works recast, transform or adapt one or more pre-existing works.

A movie or a musical derived from a book are typical examples of derivative works.   Translations, abridgments, annotated editions, art reproductions, sound recording, dramatizations are all in this category.

Producing a work which is substantially similar to the original is to set the basis for an infringement suit.

It is the owner of the copyright who has control over derivative works.

Compilation

Compilations may receive copyright protection. 

A compilation consists of pre-existing materials, which may or may not have been the subject to copyright, that have been selected and arranged into one format.  Thus the author of a compilation may not have created any of the materials organized under the compilation.   However, the author of a compilation, (directory, anthology, database), is accorded copyright protection because the legislature recognized the effort, time and expense that the compilation author expended in construction the work. 

Even with these allowances, compilations are still required to provide a minimal level of creativity in order to be eligible for copyright protection.  An example of a compilation which is not sufficiently creative to be accorded a copyright is the telephone white pages which is simply an uncreative alphabetical listing of peoples' names.   However, the Yellow Pages which is creatively divided into goods and services categories, does receive copyright protection.

Government Works

Any work created by the United States Government cannot receive copyright protection.   However, the United States Government is allowed to receive and to hold, with all accompanying rights, copyrights which are transferred, assigned, gifted or otherwise to it by others.

Useful Articles (PGS - Pictoral, Graphic, Sculptural)

Are works which possess a utilitarian element or elements.  Utilitarian elements are not eligible for copyright protection.  Officially, a useful article is defined as an "article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." (Section 101).

In order to receive copyright protection a useful article must have utilitarian elements which are separable (physically or conceptually) from the expressive, copyrightable elements.  The issue of what is separable and what is not is often a very grey one and is sometimes decided by the courts.

"What happens when someone tries to copyright something which is both useful and decorative like a fancy wooden chair?" 

What happens is an attempt to separate from the utilitarian functions of the chair, the artistic elements.  The artwork embodied in the wooden sculpting of the chair's back or legs would be copyrightable while the chair itself would not be protected under copyright. (Section 101).

Copyright Ownership

Copyright ownership may be in one of several formats.  While Copyright ownership normally is straightforward and self-evident, it may become less clear when it involves an employer/employee relationship.

Works for Hire

Works for hire are works which were created within the scope of employment.  Works which are created within the scope of employment will belong to the employer and not to the artist/author that created them. 

There are two methods in which a work may be considered a "work for hire."   First, if the work was prepared by an employee in the course of employment and second, works created by independent contractors.  Unless an employee is very careful to keep the act of creation entirely separated from the employer's materials, equipment and time,  the work will usually be classified as a work for hire.   Typically, the more sophisticated businesses will set forth copyright ownership provisions in their employee contracts and handbooks.

Independent contractors if:

1) the parties have expressly contracted that the work be considered a work for hire; and

2) if the work is one of the following:

Individual ownership is the type of ownership most frequently associated with Copyrights.  This ownership involves only one creator or author to whom the Copyright belongs.

Joint works are works that are prepared by more than one author with the intent that the separate contributions should be melded into one unitary work.  

In order to qualify as a co-owner, the co-owner must have contributed something to the expression of the work.  If the person contributed the idea or paid for its creation, these types of contributions are insufficient to make this person a co-author.

Collective Works 

A collective work is a work in which a number of separate and independent works are combined to form a unified, collective whole.  Examples of collective works include anthologies, encyclopedias, journals, and manuals compiled from seminars.

The author of each separate component, absent a transfer of copyright in writing, is the owner of the copyright in that separate component.

Transfer of Ownership Renewal of Copyrights

The Copyright Act of 1976, as can be seen in the preceding section concerning the duration of copyrights, preserves and enhances certain aspects of the Copyright Act of 1909.  Under the 1909 Act, the creator received a term of protection of 28 years.   This term could be renewed and a new period of 28 years protection enjoyed.   Since the 1976 Act was enacted while copyrights from the 1909 Act were still enforce, the 1976 made provisions for copyright renewals.

Copyright Infringement (Section 501)

Copyright infringement occurs when anyone violates any of the exclusive rights given by the Copyright Act to the copyright owner. 

In order to prove infringement, it must be shown that the defendant copied, or had the capacity to copy, the plaintiff's copyrighted work and that the copying was extensive enough to constitute improper appropriation of the copyrighted work.

Various forms of infringement exist including:  Direct Infringement, Contributory Infringement and 
Vicarious Infringement. 

Defenses to Infringement

Some of the defenses to copyright infringement are invalidity of the copyright and the fair use defense.

Fair use is a statutory provision which allows the reproduction of copyrighted materials for specific uses which might otherwise constitute copyright infringement.  The exemptions under fair use are limited to the purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  This list is not an exhaustive listing of possible fair uses.

The fair use defense is the most commonly used defense to infringement. Some examples of uses that are found to be fair are for purposes such as: criticism, comment, news reporting, teaching, scholarship, or research. This list is not an exhaustive but an inclusive one. Just stating that the use falls under one of the fair use categories is not sufficient.

Remedies to Infringement

The following is a list of potential remedies to copyright infringement.  The remedies applied is dependent upon the facts of each case. 

The Copyright Notice

In the United States copyright notice is no longer required to be affixed to works in order to claim and preserve copyright ownership.  Internationally, copyright is governed by international agreement and treaty and many countries still require the affixing of the "c in the circle" symbol as well as the year of creation, the name of the author and the statement "all rights reserved."  It is recommended that, where feasible, all works carry these markings especially if they are to be posted on the Internet.

The © Symbol

Copyright notice consists of four separate elements:

	The word "copyright" which may also be abbreviated as "copr." or "©";
	The year of the first publication;
	The name of the owner of the copyright; and
	The statement "All rights reserved."

	If only a small number of copies were distributed to the public without notice/
	If the owner registered the copyright with the Copyright Office within five years of the public distribution and the owner makes reasonable efforts to place notice on the distributed copies
	If the omission of the copyright notice were in violation of a contractual agreement by the owner that the copyright notice be included as a condition of authorizing the public distribution.

International Notice

Copyright Main Page & Copyright Registration 
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