Brett J. Trout www.bretttrout.com ©2003 Brett J. Trout A Copyright Primer Brett J. Trout www.bretttrout.com ©2003 Brett J. Trout

What is a Copyright? Original work of authorship Fixed in a tangible medium

Copyright Protects Literary works Musical works Dramatic works Choreographic works

Copyright Protects Pictorial, graphic and sculptural Motion pictures Sound recordings Architectural works

Exclusive Rights Reproduce the copyrighted work Prepare derivative works Distribute copies by sale or other transfer Perform the copyrighted work publicly Display the copyrighted work publicly

Damages For Infringement Your damages Infringer’s profit Injunction

Damages For Infringement Statutory damages $30K $150K if willful and malicious Attorney fees and costs Available to either side Frivolous or unreasonable

Protection is available for both published and unpublished works.

Copyright Does Not Protect Ideas Procedures Processes Systems Federal publications Methods of operation Concepts Principles Public Domain Material.

Compilations Non-Factual Factual compilations Protected May possess requisite originality Selection of facts Placed in what order How facts are arranged or presented.

Public Domain Ideas Facts Scenes a faire United States government works

Public Domain Copyright Expired Specifically dedicated to public Published in the U.S. prior to 1923; 70+ years after author’s death; or No copyright renewal filed Specifically dedicated to public

Public Domain Public domain does not mean accessible Derivative works may not be in public domain Photographs Translations

Copyright Classifications (37 CFR § 202.1) TX: non-dramatic literary works PA: works of the performing arts VA: works of the visual arts SR: sound recordings

How much of someone else’s work can I use without getting permission? Permissible to use limited portions of a work, including quotes, for purposes such as commentary, news reporting, scholarly reports.

QUOTATIONS Quotations can be made without consent under fair use doctrine - Particularly for current news stories & historical analysis (to promote accuracy) - Provided amount of quotation is not unreasonably large - Provided copying does not destroy marketability by copyright owner

Beware of Fair Use Rarely upheld in commercial context unless Parody News Critical Commentary

Fair Use – Look at: Purpose and character of work Commercial use of copy Nature of copyrighted work Form book Amount of work taken Economic impact of taking

Advantages of Copyright Registration. Allows you to sue infringers. Provides Statutory damages Attorney fees in certain cases.

Who owns the Copyright? Upon creation of the work, the copyright immediately becomes the property of the author who created the work.

Works for Hire 1) Prepared by employee within scope of employment, or 2) Specially ordered or commissioned work, provided parties agreed in writing to treat it as work for hire limited to: parts of collective works, movies, translations, supplementary works, compilations, instructional texts, tests & answers, atlases • Belongs to employer or person for whom work was prepared [§ 201(b)]

How do I register a Copyright? A copyright application includes: A registration form A filing fee A deposit of the work for which protection is sought.

The Copyright Office provides special procedures to protect trade secrets from disclosure.

Compared to Trademark or Patent registration, Copyright registration is a quick and inexpensive process.

For works created after 1989, copyright protection is not lost even if the work is published without copyright notice.

© Although not required for works created after 1989, Copyright notice is important.

Copyright notice 1. Informs the public that the work is protected 2. Identifies the owner 3. Indicates the years of first publication

How is Copyright notice given? The © (the letter in a circle), or the word “Copyright”, or the abbreviation “Copr.” The year of first publication. The Copyright owner. Example: ©2003 Brett Trout

Publication Generally, the date on which copies of the work are first made available to the public. Distribution of copies to the public Sale or other transfer of ownership Rental, lease, or lending

Publication Offering to distribute copies to a group of persons for: Further distribution Public performance Public display Public performance or display of a work does not of itself constitute publication

Copyright Duration 95 years from publication 120 years from creation. Sonny Bono Copyright Term Extension Act Last surviving author's life plus 70 years Works for hire and anonymous 95 years from publication 120 years from creation.

Are Copyrights transferable? Yes, like any other property, all or part of the rights in a work may be transferred by the owner to another.

This would qualify as a new derivative work. How much do I have to change my own work to make a new claim of Copyright? If the changes are substantial and creative … something more than just editorial changes or minor changes. This would qualify as a new derivative work. Adding an additional chapter would qualify.

Library of Congress Works deposited for Copyright registration are available to the Library of Congress for its collections. The Library reserves the right to select or reject any published work for its permanent collections, based on the research needs of Congress, the nation’s scholars, and the nation’s libraries.

What can I do if someone infringes my Copyright? File a civil lawsuit in Federal District Court. In the case of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.

Innocent Infringement 17 U.S.C. Sections 401(d) and 402(d) prevent an alleged infringer from asserting an "innocent infringement" defense if a notice of copyright appears on the material allegedly infringed.

Innocent Infringement The innocent infringement defense can result in mitigation Actual damages Statutory damages.

Infringement - Intent • Infringement is the fact of copying or creating a derivative work, not intent to copy • Intent not required; infringement is measured by the result • Copying without knowledge of copyright is infringement

Is my Copyright good in other countries? The U.S. has Copyright relations with more than 100 countries throughout the world.

Building Design Building itself Architectural plans Drawings Created on or after 12/1/90 Or embodied in unpublished plans or drawings as of 12/1/90

Registration not required Inexpensive Advantages of Copyright Registration not required Inexpensive Protection automatically attaches

Non-willful – up to $30K Willful - up to $150K Statutory Damages Advantages of Copyright Statutory Damages Non-willful – up to $30K Willful - up to $150K Provides for attorney fees and court costs

Copyright Limitations Registration required to bring suit Does not protect functionality Vesting of original ownership often confusing

Ownership of Copyrighted Material • Ownership of copyrighted object is distinct from ownership of copyright • Owner of lawful copy has right of resale or transfer

How do I get permission to use somebody else’s work? If you know who the Copyright owner is, you can ask for permission. If you are not certain of ownership, you may request that the Copyright Office conduct a search of the records for a fee of $75.00 per hour.

Can I be sued for using somebody else’s work? The owner may be entitled to bring an infringement action against you. There are circumstances under the fair use doctrine where a quote or a sample may be used without permission. When in doubt, get permission.

Watch Out! Much of the information relating to copyright law on the Internet is inaccurate.

Copyright Myths I am free to use it because There is no copyright notice I am only using a small amount I changed quite a bit of the original material I am not making any money off the copy I am giving the authors credit I got it off the internet Someone told me I could use it Fair Use/Public Domain

ALWAYS Obtain an Assignment Paying contractor for project Not sufficient to transfer copyright Get assignment from “author” Custom software Website design Logo or graphic art Get assignment up front.

Thank you. Brett J. Trout