Ideas to Profits, November 7, 2014 The Center for Entrepreneurship, College of DuPage Copyrights Presented By: James L. Poznak Poznak Law Firm Ltd Midwest Road, Suite 206 Oak Brook, IL (voice) (fax)

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What is Copyright? Copyright protects “original works of authorship”. These include: Literary Works: Examples: pamphlets, brochures, reports Musical Works Dramatic Works Choreographic Works Pictorial Works: Examples: advertisements and designs applied to useful articles, i.e., an object that has an intrinsic utilitarian function, such as clothing and other fabric, furniture, and dishes. Audiovisual Works, including Motion Pictures Sound Recordings Architectural Works Poznak Law Firm Ltd

What is an Original Work of Authorship? An original work of authorship requires the following: An original work, i.e., created by the author through the author’s independent effort, rather than as the result of copying. The work must contain some creativity. The work must be fixed in a tangible form of expression, i.e., a form that preserves the work so it can be read, heard, seen, or otherwise understood. Poznak Law Firm Ltd

Who Owns the Copyright? The copyright is owned by the author, the author’s assignee, or the author’s employer if the work is made-for-hire. The owner of a copy of the work does not own the copyright. Example: Buying a book or buying software on a CD ROM. Poznak Law Firm Ltd

What is a Work Made-For-Hire? - A work is made-for-hire if it is prepared by an employee within the scope of the employee’s employment, or if it is specially commissioned, under certain limited circumstances, pursuant to a written agreement that expressly states the work is made-for-hire. - Works prepared by independent contractors are not works made-for- hire unless the work is under the limited specially commissioned rule. Examples: Contributions to collective works; translations; supplements to a work such as forwards, and illustrations; and collections of otherwise copyrightable work such that the resulting whole constitutes an original work of authorship. Poznak Law Firm Ltd

What is Protected by Copyright? Copyright grants the author or owner the following exclusive rights: Reproduce the work Examples: scanning and photocopying Prepare derivative works, i.e., adaptations or transformations of an existing work into a new form Examples: fabric patten from a graphic design, written instructions to a web-ex Distribute copies Examples: sending copies to clients Publically perform the work Exceptions: at home, even in the presence of guests, and restaurants, schools, charitable institutions, and religious institutions under limited circumstances Publically display the work Example: putting a copy onto a website Poznak Law Firm Ltd

What is Not Protected by Copyright? The following are not protected by copyright: Works not fixed in a tangible form of expression, such as speeches or performances that are not written or recorded Titles, names, phrases, slogans, familiar symbols and designs, colors, and mere listing of facts, ingredients, or contents Examples: phone books, instructions, and recipes, as distinguished from descriptions, explanations, and illustrations Works consisting entirely of commonly known information Examples: calendars, height and weight charts, rulers and tape measures Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, and inventions Poznak Law Firm Ltd

Are There Exceptions to the Ban on Reproducing Copyrighted Work? There are three exceptions: Fair use Archival use Radio or television broadcasts by certain restaurants not charging admission Poznak Law Firm Ltd

What is Fair Use? Fair use of copyrighted work allows use of portions of copyrighted materials without permission of the copyright owner, provided the use is fair and reasonable, does not substantially impair the value of the work, and does not curtail the profits reasonably expected by the owner of the work. Whether use of copyrighted work is fair use is determined by considering the following four factors: (1) the purpose and character of the use, including whether the use for commercial purposes or non-commercial purposes, such as for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the copied portion of the work in relation to the entire work; and (4) the effect of the use on the potential market for or value of the copyrighted work. Example of fair use: Copying a copyrighted recipe for home use, review or criticism, educational purposes, parody, and news reporting Poznak Law Firm Ltd

What is Archival Use? Purchasers of computer software may make one copy as a backup, which they may retain for so long as they rightfully possess the software. If the purchaser validly transfers the software, the purchaser may also give the archival copy to the transferee. Poznak Law Firm Ltd

What is Infringement? Infringement occurs if someone uses a copyrighted work contrary to the owner’s exclusive rights and other than for fair use, archival use, or under a broadcast exception. Poznak Law Firm Ltd

How is Infringement Determined? Whether the similarity in the works would lead the average observer to recognize the alleged copy as having been derived from the copyrighted work. Poznak Law Firm Ltd

What are the Penalties for Infringement? The penalties for infringement are: The owner’s actual damages, plus the infringer’s profits Statutory damages, between $750 and $30,000, but up to $150,000 for willful infringement, plus attorneys’ fees Injunctions Destruction of the infringing materials Criminal penalties include imprisonment for up to 10 years Poznak Law Firm Ltd

Is Registration of Work Required? Registration does not confer copyrights, but registration has these benefits: Registration is a public record that constitutes public notice of the copyright claim. Registration is required to sue for infringement. Registration within three months after publication is required to obtain statutory damages and attorneys fees. Registration within five years after publication makes the registrant the presumptive owner. Registration allows the owner to register the work with the U.S. Customs Service to prevent importation of infringing copies. Registration may grant copyright protection in the many foreign nations with whom the United States has treaties. Registration requires submission of copies to the United States Copyright Office, depending on the type of work and the medium of its expression. Publication means the distribution of copies of the work in a medium of expression. Poznak Law Firm Ltd

Is a Copyright Notice Required? A copyright notice is not required to confer copyrights, but a copyright notice has two advantages: 1. Informs whoever sees the work that the author claims a copyright. 2. Helps bar innocent infringement claims. There are three elements to a copyright notice: 1. © (the letter c inside a circle), the word “Copyright”, or the abbreviation “Copr.” 2. The year of publication. 3. The owner’s name. Examples: © 2014 Poznak Law Firm Ltd Ⓟ 2014 Poznak Law Firm Ltd (sound recordings) Poznak Law Firm Ltd

What is the Duration of Copyright Protection? Work created after January 1, 1978: - The life of the author (or the last surviving author), plus 70 years. - A work made-for-hire, the sooner of 95 years from first publication or 120 years from creation. Poznak Law Firm Ltd

Monetizing Copyrighted Work. Several methods: Sell copies of the work yourself. Sell the copyright, called an assignment. Grant permission to others to use your work, called a license. Elements of licenses: Limited to time, place, and purpose, or unlimited. Exclusive or non-exclusive. Payments for licenses are called royalties. Compulsory license: applies to most public broadcasts and provides for statutory license fees. Poznak Law Firm Ltd