Copyrights are a form of intellectual property. The term Intellectual Property refers to ideas, inventions and words or designs that are used to distinguish a product or business. The protection of intellectual property provides a competitive advantage to differentiate a business or product from its competition and help the business become a market leader. Some inventors or authors register their intellectual property and then license it or sell it for profit.
The laws in the United States provide various ways to protect intellectual property. The three main kinds of legal tools provided are: Trademarks, Copyrights and Patents. There are other forms of protection, including the Trade Secret.
The copyright protects original works by authors, including literary, dramatic and artistic works, as well as others, published and unpublished. The federal law offering this protection in the United States is the Copyright Law of 1976. The owner of a copyright receives the exclusive right to reproduce the protected work, the right to prepare derivative works of the original, the right to distribute and make copies, and the right to make demonstrations or presentations of the work.
Similar to a trademark, the protection obtained when registering the copyright at a federal level is greater than the protection afforded by common law. In contrast with a trademark registration, a single symbol, the ©, is used with both, the federal registration and for common law protection, as means of giving notice (although the © notice is no longer required for protection, as described below.) NOTE: For audio (“phonorecords”) the symbol ℗ is used (the letter “P” in a circle) instead of the letter “C” in a circle.
Federal copyright protection is afforded to the first who registers the work. By way of illustration, imagine the following scenario: An original author, “Mike MacCourtney,” is a composer and is singing one of his original songs while taking a shower. He had not previously registered or protected this song or has any record or way to demonstrate his authorship. Mr. MacCourtney’s neighbor, “Juan Lemon,” hears the song while watering his lawn. Mr. Lemon immediately writes down the song and files a copyright registration with himself as the original author. The original author, Mr. MacCourtney, is “out of luck,” because it will be very difficult for him to prove authorship against Mr. Lemon.
As it is the case with a trademark, with the copyright there is a common law protection. Copyright protection attaches the moment it is created and fixed in a tangible form that it is perceptible either directly, or with the aid of a machine or device. Since the adoption of the Berne Convention Implementation Act of 1988 in the United States, the use of the copyright symbol © next to the year of creation and the name of the author or entity owning the copyright (for example: © Copyright 2012, Yasmin Tirado-Chiodini) to give notice of copyright ownership became optional.
However, it is always prudent to continue to use the symbol to conservatively preserve protection rights. The © notice alerts the public that the author or entity listed claims the copyright to the work. If someone copies the work before the author has registered it, the author must demonstrate his ownership in court.
A great advantage of registering is that registered works may be eligible for statutory damages and attorney’s fees in successful litigation. Registering the work within 5 years of publication is considered prima facie evidence in a court of law (no other evidence is necessary to prove ownership.)
In the previously discussed case of “Juan Lemon,” if Mr. Lemon registers the copyright he fraudulently copied, and thereafter Mr. MacCourtney (the original author) produces evidence that he created the song and tried to protect it (e.g., with the © symbol, or otherwise), there may still be a possibility of recovering the right in court. That said, this process is not effortless and may be costly.
Mailing a sealed envelope containing the work, whether to yourself or another (also referred to as “Poor Man’s Copyright”), is not a substitute for registration. Therefore, it is more cost-effective to avoid the above or other scenarios by registering the work from the beginning.
Copyright Registration and Cost
The applicant can register a copyright by uploading the work to “eCO,” the online system of the U.S. Copyright Office or by mailing the work with a registration application and meeting the mandatory deposit requirement (e.g., submitting two copies of the expression –the song or book, etc. to the Library of Congress.)
Subject to change, the agency cost of a basic application is $35 if it is submitted online, and $45 if it is submitted in writing. Attorney costs vary.
In 1998, the Copyright Term Extension Act extended the protection term of the copyright. The protection afforded to works created since 2002 lasts 70 years from the death of the author. For works belonging to businesses, the copyright lasts 95 years from publication, or 120 years from creation, whichever is shorter.
The reader should note that the copyright protects the expression of the idea, not the idea itself. If the idea is an invention that can be patented, the owner must then patent it in order to protect it. For example, a drawing of an ice cream machine can be copyrighted. The invention or idea of the actual machine, as a functional and useful device, may be protected through a patent. The machine’s aesthetic design can also be patented. In addition, book titles cannot be copyrighted, but they could be trademarked under certain circumstances.
For more information on copyrights, see http://www.copyright.gov.
* This material contains an excerpt from the book “Does Your Compass Work? Practical Legal Guide for Florida Businesses.” Copyright © 2008-2015 Yasmin Tirado-Chiodini. All Rights Reserved. This excerpt is provided under a Creative Commons License.