Do You Copy?

To © or not to ©: How a copyright can protect your creative works
From the November 1999 issue of Entrepreneur

You already know you can get protection for a unique gadget or other invented product by filing a patent application with the U.S. Patent and Trademark Office (PTO). But what about a song, story, sculpture or software program? Patents can't help you here--they don't protect those kinds of creations. The good news: Copyright protection does.


Tomima Edmark, the woman famous for her Topsy Tail invention has now turned her creative talents to the competitive retail arena of intimate apparel, HerRoom and HisRoom.

Get The Rights

What is a copyright? It's a form of protection provided by U.S. law to anyone who creates "original works of authorship." Essentially, a copyright protects literary, musical, dramatic, artistic and other qualifying creative works. The Copyright Act of 1976 further clarified copyright protection: Now a copyright owner has the exclusive right to reproduce the work; prepare spinoff works based on the copyrighted work; and to sell, perform and/or display the copyrighted work in public.

One of the nice things about copyright is that securing such protection is fairly straightforward. Copyright protection is created the moment your work is fixed in a copy or phonorecord (CD, LP, cassette, disk and the like) for the first time. In other words, once your story is put in writing, your song is transcribed as sheet music or recorded, or your creative work is given some fixed form, your copyright is automatically secured. From that moment on (assuming creation occurred after January 1, 1978), your work has copyright protection for your lifetime, plus 50 years after your death.

It's sometimes confusing as to who exactly is the owner of copyright protection. When just one author is involved, he or she can rightfully claim copyright. If the work was a collaborative effort between several authors, each author becomes a co-owner of the copyright. Co-ownership means each author has the rights to the work--all owners would have to agree to sell their rights for someone to have exclusive ownership of the work. For this reason, it's a good idea to have an agreement drawn up beforehand as to who will own the copyright. The term of copyright in a co-authorship situation is 50 years after the last surviving author's death.

If the work was commissioned or created as part of the creator's job, the employer is considered to be the author. After all, the author was paid for the work with wages. In this case, the term of copyright is calculated differently. If copies or phonorecords of the work are distributed to the public for sale, that first date of sale is called the publication date. The term of copyright protection is calculated as 75 years from the publication date or 100 years from the creation date; whichever is shorter.

Confused? Here's an example. While employed, you write a software manual. Your employer puts the manual on the market for sale two years later--that becomes the publication date. Two years plus 75 years equals 77 years. This is less than 100 years, so the term of copyright is 77 years, based on the publication date. If the employer had put the manual on the market 27 years later, the term would have been 100 years, based on the creation date. But remember, the copyright belongs solely to your employer, not to you, because the work was created as part of your employment.

What Qualifies?

Copyrightable works fall into eight categories: literary works; musical works; dramatic works; pictorial, graphic and sculptural works; sound recordings; pantomimes and choreographic works; audiovisual works; and architectural works. These categories are interpreted very broadly. For example, software may be registered as a literary work; maps as pictorial, graphic and sculptural works; and a children's slide as an architectural work.

On the flip side, several categories of material are not eligible for federal copyright protection. Works that have not been fixed as a copy or phonorecord are not eligible. For example, a dance that has not been recorded or notated is not yet eligible for copyright. Titles, names, short phrases and slogans are not eligible for copyright because they are covered under trademark protection. Mere listings, such as ingredients or phone numbers, are also ineligible. Works that are nothing more than common property and contain no original authorship--such as standard calendars, rulers, height and weight charts, and standard business forms--cannot be protected by copyright. And works by the U.S. government are not eligible for copyright protection because they were paid for by taxpayers and thus are free for anyone's use.

© For Yourself

When you see the letter "C" enclosed in a circle, you're being informed the work is declaring copyright privileges. This symbol used to be required under U.S. law but today is not required. Works created before March 1, 1989, when the requirement was lifted, must continue to display the notice in the proper format--for example: ©1999 John Doe. Regardless, it's generally considered a good idea to display the notice because it informs the public that the work is protected by copyright. If the work is infringed on and the copyright mark appears on the work, no weight will be given to a defendant's argument that infringement was an innocent mistake.

Registering Copyrights

Registering your copyright with the U.S. Copyright Office is not a requirement for copyright protection. However, copyright laws provide several advantages to those copyright owners who take the time to register. A formal registration establishes a public record of your copyright claim. Should someone infringe on your copyright, in order to file an infringement lawsuit, your work must first be registered. With a registered copyright, you're entitled to claim not only actual damages, but statutory damages and attorney's fees as well. And registration will allow you to record your ownership with the U.S. Customs Service for protection against the importation of infringing copies. Registration of works may be done at any time within the life of the copyright.

One last thing to keep in mind: While copyright protection is instantly provided once the work is created and documented, it only protects the particular arrangement of words or the way something looks. It does not protect the subject matter of the information being communicated. If it did, there would only be one book on history, one type of accounting software, or one statue of lovers locked in a kiss. And that would be a sad situation, indeed.

On File

To register for copyright protection, include in the same envelope:

1. The appropriate application form

2. $30 nonrefundable filing fee

3. A nonreturnable copy of the work

Send to: Library of Congress, Copyright Office, Register of Copyrights, 101 Independence Ave. S.E., Washington, DC 20559-6000.

For more information on copyrights and to obtain application forms, contact the Copyright Office at (202) 707-3000 or http://www.loc.gov.copyright.

Next Step

Associations that can help you with your copyright questions:

  • Minnesota Inventors Congress

P.O. Box 71

Redwood Falls, MN 56283

(507) 637-2344

http://www.inventorscongress.com

  • United Inventor's Association of the USA

P.O. Box 23447

Rochester, NY 14692

(716) 359-9310

http://www.uiausa.com

  • Washington Small Business Development Center

Washington State University

P.O. Box 644857

Pullman, WA 99164-4851

(509) 335-1576

http://www.sbdc.wsu.edu

  • Stephen Elias' Patent, Copyright & Trademark: A Desk Reference to Intellectual Property Law (Nolo Press). Visit http://www.nolo.comfor even more copyright information.
View Comments (0)