Copyright Basics

One of the most frequent questions I get from new artists is:  "What are my Copyrights, and how do I protect them?" 

Copyrights are the bundle of rights an artist, writer, performer, photographer, etc. has in the work that he or she has created.  They include the right to reproduce, publish, distribute and modify their artistic or literary creations.  The most important method of protecting artistic, literary creations or computer technology is through the law of Copyrights. Copyright protection in this country dates back almost 200 years, and was seen as important enough to be written into the US Constitution. Our founding fathers established a system of protection for authors and inventors where creators of intellectual works were granted exclusive rights in their writings and discoveries for limited periods of time. The present Copyright Act was redrafted and refined in 1976, and expanded in 1980 to clearly extending Copyright protection to computer programs.

Under the law the author of a computer program, painting, screenplay, novel, story, song, photo, movie and many other protected media, has the exclusive right to reproduce and distribute their creation and any derivative versions. They also have the exclusive right to authorize others to do so during the term of the Copyright. Under the current Copyright Law, that protection begins the moment a work is completed, and lasts the entire lifetime of the author, plus 70 years for individuals, and 95 years for corporations and other works for hire. [Note: From 1976 to 1998 the term was life plus 50 years for individuals and 75 years for corporations and works for hire.]  Thus, the author of a Copyrighted work has the right to restrict all persons from copying the work without consent and to take strong legal action against anyone who infringes on the Copyright.

There are three basic exceptions to these protections which can be invoked under limited circumstances. The first exception is essentially a technical point applying specifically to computer programs. It is not considered an infringement if a copy of a computer program is created as an essential step in its utilization by the computer. In other words, if, as the program runs, a duplicate or partial copy is created or transformed "inside" the computer in order to allow the program to operate properly, there is no infringement of the author's Copyright.

The second exception is more practical and also easiestly applied to computer programs. A user may make a copy of the work for archival (backup) purposes. It is easy to see how this exception applies to computer programs, but it can also be applied to other protected material if the purpose of the copy is solely for the purpose of preservation or security. However, the copy must be destroyed if the user sells or otherwise ceases to have a lawful right to possess it; i.e.: the license granting the use of the material expires.

The third exception is called the doctrine of "fair use." Under certain conditions, a user may have a limited right to duplicate all or part of a Copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research. In determining whether a particular use is a "fair use", a number of factors are considered, including the purpose of the use, (whether it is for commercial or nonprofit educational purposes); the nature of the work; how much of the work is used and how substantial that portion is in relation to the entire program; and the effect of the use upon the potential market or value of the work. For instance, a public school can’t copy text books and claim “fair use” just because the school is nonprofit with an educational purpose; but a critic can publish an exert of the same text book to criticize the work even if the critic is paid for his critique and his article is published in a for profit periodical.

The work does not need to be registered to have the protection of the Copyright Law; the rights to exclusive ownership and control inure to the creator as soon as his “pen leaves the paper". However, before a Copyright can be enforced in court, the owner must register the Copyrighted material with the United States Copyright Office in Washington, D.C. The original and all copies of a work should be marked with a Copyright notice - the word "Copyright" the abbreviation "Copr.", or the symbol ©, the date and the author's name. The idea is to put a potential user of the material on notice that the material has been registered, and the author intends to enforce his rights in the material.

The Copyright is registered by completing an application and depositing a copy of the work with the Copyright Office. For computer programs, if a program is more than fifty pages, only the first 25 and last 25 pages are required. For programs that contain trade secrets, the author may omit a portion of the code in accordance with Copyright Office regulations.

Registration gives the Copyright owner the right to sue in Federal Court to stop infringers and to recover damages caused by the infringement. In a case of Copyright infringement, the Court can issue an injunction prohibiting further use of the material, order the seizure and destruction of infringing items and the means to make them, and award damages to the Copyright owner based either on the author's lost profits or the infringer's ill-gotten gains. If registration has been made prior to the infringement (or within three months after first publication of the work), the owner may ask the Court to award statutory damages ranging from $500 to $20,000 for each work infringed, plus attorney's fees. If the author is able to establish willful infringement, statutory damages can rise to $100,000 for each work infringed, and under some circumstances, criminal penalties can be imposed.

Stated another way, if your work is copied and used before you register your Copyrights, in court you can sue for an injunction plus either your lost profits due to the infringement, or the profits made as a result of stealing your work. However, if you register your Copyrights before someone copies your work, you could be awarded up to $20,000 per work infringed upon without having to show that you lost one red cent, or that the infringer made a nickel, plus have the infringer reimburse your legal fees; and if you can show someone knew they were stealing your protected work, you could get up to $100,000 for the infringement, plus attorney fees. Considering the minimal cost of registering the work, it is normally well worth the investment.