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

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

3. Copyright Protects Literary works Musical works Dramatic works
Choreographic works

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

5. 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

6. Damages For Infringement
Your damages
Infringer’s profit
Injunction

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

8. Protection is available for both published and unpublished works.

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

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

11. Public Domain Ideas Facts Scenes a faire
United States government works

12. 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

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

14. 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

15. 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.

16. 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

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

18. 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

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

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

21. 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)]

22. 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.

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

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

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

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

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

28. 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

29. 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

30. 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

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

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

38. 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

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

40. 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

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

42. 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

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

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

45. 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.

46. 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.

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

48. 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

49. 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.

50. Thank you.
Brett J. Trout