In my practice, clients often confuse copyright and trademark. That’s understandable, given that the two both protect what is sometimes called intangible intellectual property, yet they protect very different types of rights. Below we will delve into the realm of copyright.
What is a copyright?
Stated simply, copyright protects original creative works. It applies to literary works such as books and articles (including this column), artistic works such as paintings and sculpture, and musical works, including musical scores and recordings. You might also be surprised that copyright applies to computer code, choreography, and even architecture. However, it does not protect facts, ideas, systems, or methods of operation.
So let’s put our copyright knowledge to the test with the following questions, shall we?
Q: I have a great idea for a sci-fi opus about pixies on Mars that I don’t want my downstairs neighbor to steal before I can get it written down. Can I copyright it?
A: In a word, no. (If you answered yes, then go back and re-read the preceding paragraph, particularly the last sentence—copyright does not protect ideas.)
Q: I have a great original novel about pixies on Mars; unfortunately, it’s already been rejected by every commercial publisher in existence (hey, it’s ahead of its time!). Can I copyright it anyway?
A: Yes. So long as the work meets the other requirements set forth immediately below, there is no requirement that the work be commercially published—or published at all. This also goes for your musical composition or new dance steps.
How do I obtain copyright?
Assuming that your original work of authorship is in “a tangible medium of expression” (i.e., it is written down or recorded), and also assuming that it contains a “modicum of originality,” you don’t need to do anything. A “common law” copyright vests automatically to your work, and you should provide copyright notice on your works in this way “Copyright © 2013 [your name here]”). You may apply the copyright notice and use the “©” symbol without registering the copyright. However, if you do timely register your copyright in the U.S. Copyright Office of the Library of Congress (within three months of the publication date), your copyright registration will give you additional protection from infringement, including a legal presumption of validity and the ability to recover statutory damages. Attorneys’ fees for infringement may also be available. Importantly, a certificate of registration is required before you can file suit in federal court for copyright infringement.
What does having a copyright allow me to do?
Under the 1976 Copyright Act, having a copyright gives you the exclusive right to do (and authorize others to do) the following:
• Reproduce and publish the work;
• Prepare derivative works based on the original work;
• Distribute copies or recordings of the work;
• Perform the original work publicly; and
• Display the original work publicly
How do these rights really work?
For the purpose of illustration, let’s try applying the above rights to a basic fact pattern. Turning back to the questions above, if I finally publish my book about pixies on Mars, it becomes a bestseller, and then I discover, to my horror, that my downstairs neighbor is composing a rock opera based on my book and even includes the same characters, can I stop him from publishing it?
The answer is yes. As noted above, as the copyright owner, you control the right to create derivative works based on your copyrighted novel, which would generally sequels, spin-offs, and, yes, even rock operas.
How long does registered copyright protection last?
Generally, for works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years, but there are exceptions.
Where can I go for more information?
The contents of this piece are not legal advice. Consult with a business law and corporate governance attorney prior to embarking on any legal matter. Barry Scholl can be contacted at 1-801-531-2000 or firstname.lastname@example.org.