Copyright Law

What is a Copyright?

A copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following: • reproduce the work • prepare derivative works • perform the work publicly• display the work • perform the work. 

Only the author or those deriving their rights through the author can rightfully claim copyright. An author is the creator of a work that "owes its origin to the author," i.e., that the work is independently created, rather than copied from other works.

Work Made for Hire

In the case of works made for hire, the employer and not the employee is considered to be the author. A “work made for hire” is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned for use as acontribution to a collective work; a part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Fair Use

Few aspects of copyright are as misunderstood as fair use. Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary, criticism, or parody. The factors to be weighed in determining whether fair use exists are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; ( 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Because there is a sizable gray area in which fair use may or may not apply, there is never a guarantee that a use will qualify as a fair use.

Infringement

An infringer of copyright is liable for either the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection or statutory damages.

Actual Damages and Profits. The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Statutory Damages. The copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.

Willfulness. In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

Duration

Generally, for works securing federal statutory protection for the first time on or after January 1, 1978, there is a single copyright term and different methods for computing the duration of a copyright. The term is life plus 70 years for works by an author (but 95 years for pseudonymous works or works made for hire). The duration of any specific copyright requires specific analysis applying the copyright statute.