What is Intellectual Property Law?
Intellectual property law deals with the rules for securing and enforcing legal rights to inventions, designs, and artistic works. Just as the law protects ownership of personal property and real estate, so too does it protect the exclusive control of intangible assets. The purpose of these laws is to give an incentive for people to develop creative works that benefit society, by ensuring they can profit from their works without fear of misappropriation by others.
Article I, Section 8 of the U.S. Constitution gives Congress express authority to grant authors and inventors exclusive rights to their creations. Section 8 also gives Congress the power to regulate interstate and foreign commerce, providing further support for its right to legislate in this area. Intellectual property laws passed by Congress are administered by two government agencies, the U.S. Patent and Trademark Office, and the U.S. Copyright Office.
Patents give inventors the right to use their product in the marketplace, or to profit by transferring that right to someone else. Depending on the type of invention, patent rights are valid for up to 20 years. Qualifying items include new machines, technological improvements, and manufactured goods, including the “look” of a product. Patent protection will be denied if an invention is found to be obvious in design, not useful, or morally offensive.
Trademarks protect symbols, names, and slogans used to identify goods and services. The purpose is to avoid confusion, deter misleading advertising, and help consumers distinguish one brand from another. Since the goal is to distinguish, generic or purely descriptive marks may not qualify. Rights can potentially last forever, and they are obtained by simply using a mark. While not required, owners can register their marks for additional protection.
Copyrights apply to writings, music, motion pictures, architecture, and other original intellectual and artistic expressions. Protection is not available for theories or ideas, or anything that has not been captured in a fixed medium. The act of creation itself produces a copyright and unpublished works are still protected. Use of a copyright symbol and date is common, but not mandatory. Most copyrights are valid for the creator’s lifetime, plus 70 years.
Protecting Against Infringement
Infringement refers to the unauthorized use of intellectual property. To protect against infringement, owners should take steps to put the world on notice that their rights exist. Providing notice helps deter infringement by making the owner’s rights more visible to those who might inadvertently violate them. It also triggers additional legal benefits, and puts the owner in a better position to prosecute an infringement in court, if that becomes necessary.
Inventors can give notice of their rights by marking their product with the patent number assigned to it by the Patent and Trademark Office. The label “patent pending” can also be used to discourage others from copying the design before the patent is awarded. Notice of trademarks and copyrights is given by placing the appropriate symbol (™, ©, etc.) on the material, and then registering the mark or copyright, so it can be added to the government’s database.
If infringement does occur, rights to intellectual property can be enforced in federal court. Before filing a lawsuit, however, owners will want to consult with an attorney and carefully consider whether litigation is in their best interests. Infringement cases are expensive to prosecute, and there is always a risk that the owner’s rights, once held up to the scrutiny of a court proceeding, will be revealed as invalid or less extensive than the owner believed.
In the event an owner of intellectual property does sue, and the lawsuit is successful, a number of remedies will be available. The court can order an injunction, meaning the infringer must stop what it is doing. Substantial money damages may also be available. In addition, once the owner’s rights are established in court, the infringer may agree to a license agreement. This allows use of the intellectual property to continue, with payments going to the owner.
Rights to intellectual property can be incredibly lucrative, making individuals huge sums of money. Infringement claims have also bankrupted large, profitable companies without warning. With so much at stake, anyone dealing with issues in this area of the law should seek the advice of an attorney. Firms specializing in intellectual property law are available to help owners who are looking to establish, profit from, or defend their rights.
What types of creative work does copyright protect?
Copyright protects works such as poetry, movies, CD-ROMs, video games, videos, plays, paintings, sheet music, recorded music performances, novels, software code, sculptures, photographs, choreography and architectural designs.
To qualify for copyright protection, a work must be “fixed in a tangible medium of expression.” This means that the work must exist in some physical form for at least some period of time, no matter how brief. Virtually any form of expression will qualify as a tangible medium, including a computer’s random access memory (RAM), the recording media that capture all radio and television broadcasts, and the scribbled notes on the back of an envelope that contain the basis for an impromptu speech.
In addition, the work must be original — that is, independently created by the author. It doesn’t matter if an author’s creation is similar to existing works, or even if it is arguably lacking in quality, ingenuity or aesthetic merit. So long as the author toils without copying from someone else, the results are protected by copyright.
Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author. There is no hard and fast rule as to how much creativity is enough. As one example, a work must be more creative than a telephone book’s white pages, which involve a straightforward alphabetical listing of telephone numbers rather than a creative selection of listings.
Does copyright protect an author’s creative ideas?
No. Copyright shelters only fixed, original and creative expression, not the ideas or facts upon which the expression is based. For example, copyright may protect a particular song, novel or computer game about a romance in space, but it cannot protect the underlying idea of having a love affair among the stars. Allowing authors to monopolize their ideas would thwart the underlying purpose of copyright law, which is to encourage people to create new work.
For similar reasons, copyright does not protect facts — whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all. For instance, anyone is free to use information included in a book about how the brain works, an article about the life and times of Neanderthals or a TV documentary about the childhood of President Clinton — provided that that they express the information in their own words.
Facts are not protected even if the author spends considerable time and effort discovering things that were previously unknown. For example, the author of the book on Neanderthals takes ten years to gather all the necessary materials and information for her work. At great expense, she travels to hundreds of museums and excavations around the world. But after the book is published, any reader is free to use the results of this ten year research project to write his or her own book on Neanderthals — without paying the original author.
How long does a copyright last?
For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.
All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002. And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047.
Is the Work Published?
In the complicated scheme of copyright laws, which law applies to a particular work depends on when that work is published. A work is considered published when the author makes it available to the public on an unrestricted basis. This means that it is possible to distribute or display a work without publishing it if there are significant restrictions placed on what can be done with the work and when it can be shown to others. For example, Andres Miczslova writes an essay called “Blood Bath” about the war in Bosnia, and distributes it to five human rights organizations under a non-exclusive license that places restrictions on their right to disclose the essay’s contents. “Blood Bath” has not been “published” in the copyright sense. If Miczslova authorizes posting of the essay on the Internet, however, it would likely be considered published.
What role does a copyright notice play?
Until 1989, a published work had to contain a valid copyright notice to receive protection under the copyright laws. But this requirement is no longer in force — works first published after March 1, 1989 need not include a copyright notice to gain protection under the law.
But even though a copyright notice is not required, it’s still important to include one. When a work contains a valid notice, an infringer cannot claim in court that he or she didn’t know it was copyrighted. This makes it much easier to win a copyright infringement case and perhaps collect enough damages to make the cost of the case worthwhile. And the very existence of a notice might discourage infringement.
Finally, including a copyright notice may make it easier for a potential infringer to track down a copyright owner and legitimately obtain permission to use the work.
What is a valid copyright notice?
A copyright notice should contain:
- the word “copyright”
- a “c” in a circle (©)
- the date of publication, and
- the name of either the author or the owner of all the copyright rights in the published work.
For example, the correct copyright for the ninth edition of The Copyright Handbook, by Stephen Fishman (Nolo) isCopyright © 2006 by Stephen Fishman.
In the United States, a copyright owner can significantly enhance the protection afforded by a basic copyright. This is done by registering the copyright with the U.S. Copyright office. See Copyright Registration and Enforcement.
International Copyright Protection
Copyright protection rules are fairly similar worldwide, due to several international copyright treaties, the most important of which is the Berne Convention. Under this treaty, all member countries — and there are more than 100, including virtually all industrialized nations — must afford copyright protection to authors who are nationals of any member country. This protection must last for at least the life of the author plus 50 years, and must be automatic without the need for the author to take any legal steps to preserve the copyright.
In addition to the Berne Convention, the GATT (General Agreement on Tariffs and Trade) treaty contains a number of provisions that affect copyright protection in signatory countries. Together, the Berne Copyright Convention and the GATT treaty allow U.S. authors to enforce their copyrights in most industrialized nations, and allow the nationals of those nations to enforce their copyrights in the U.S.
When can I use a work without the author’s permission?
When a work becomes available for use without permission from a copyright owner, it is said to be “in the public domain.” Most works enter the public domain because their copyrights have expired.
To determine whether a work is in the public domain and available for use without the author’s permission, you first have to find out when it was published. Then apply the following rules to see if the copyright has expired:
- All works published in the United States before 1923 are in the public domain.
- Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002.
- For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.
- Lastly, if the work was published between 1923 and 1963, you must check with the U.S. Copyright Office to see whether the copyright was properly renewed. If the author failed to renew the copyright, the work has fallen into the public domain and you may use it.
The Copyright Office will check renewal information for you, at a charge of $150 per hour. (Call the Reference & Bibliography Section at 202-707-6850.) You can also hire a private copyright search firm to see if a renewal was filed. Finally, you may be able to conduct a renewal search yourself. The renewal records for works published from 1950 to the present are available online at www.copyright.gov. Renewal searches for earlier works can be conducted at the Copyright Office in Washington D.C. or by visiting one of the many government depository libraries throughout the country. Call the Copyright Office for more information.
With one important exception, you should assume that every work is protected by copyright unless you can establish that it is not. As mentioned above, you can’t rely on the presence or absence of a copyright notice (©) to make this determination, because a notice is not required for works published after March 1, 1989. And even for works published before 1989, the absence of a copyright notice may not affect the validity of the copyright — for example, if the author made diligent attempts to correct the situation.
The exception is for materials put to work under the “fair use rule.” This rule recognizes that society can often benefit from the unauthorized use of copyrighted materials when the purpose of the use serves the ends of scholarship, education or an informed public. For example, scholars must be free to quote from their research resources in order to comment on the material. To strike a balance between the needs of a public to be well-informed and the rights of copyright owners to profit from their creativity, Congress passed a law authorizing the use of copyrighted materials in certain circumstances deemed to be “fair” — even if the copyright owner doesn’t give permission.
Often, it’s difficult to know whether a court will consider a proposed use to be fair. The fair use statute requires the courts to consider the following questions in deciding this issue:
- Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it’s usually not fair.)
- How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)
- How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use that if it is merely copied verbatim into another work. Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use).
As a general rule, if you are using a small portion of somebody else’s work in a non-competitive way and the purpose for your use is to benefit the public, you’re on pretty safe ground. On the other hand, if you take large portions of someone else’s expression for your own purely commercial reasons, the rule usually won’t apply.
If You Want to Use Material on the Internet
Each day, people post vast quantities of creative material on the Internet — material that is available for downloading by anyone who has the right computer equipment. Because the information is stored somewhere on an Internet server, it is fixed in a tangible medium and potentially qualifies for copyright protection. Whether it does, in fact, qualify depends on other factors that you would have no way of knowing about, such as when the work was first published (which affects the need for a copyright notice), whether the copyright in the work has been renewed (for works published before 1978), whether the work is a work made for hire (which affects the length of the copyright) and whether the copyright owner intends to dedicate the work to the public domain. If you want to download the material for use in your own work, you should be cautious. It’s best to track down the author of the material and ask for permission. Generally, you can claim a fair use right for using a very small portion of text for commentary, scholarship or smilar purposes.
What are the exceptions to the rule that the creator of a work owns the copyright?
Copyrights are generally owned by the people who create the works of expression, with some important exceptions:
- If a work is created by an employee in the course of his or her employment, the employer owns the copyright.
- If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be “made for hire,” the commissioning person or organization owns the copyright only if the work is (1) a part of a larger literary work, such as an article in a magazine or a poem or story in an anthology; (2) part of a motion picture or other audiovisual work, such as a screenplay; (3) a translation; (4) a supplementary work such as an afterword, an introduction, chart, editorial note, bibliography, appendix or index; (5) a compilation; (6) an instructional text; (7) a test or answer material for a test; or (8) an atlas. Works that don’t fall within one of these eight categories constitute works made for hire only if created by an employee within the scope of his or her employment.
- If the creator has sold the entire copyright, the purchasing business or person becomes the copyright owner.
Who owns the copyright in a joint work?
When two or more authors prepare a work with the intent to combine their contributions into inseparable or interdependent parts, the work is considered joint work and the authors are considered joint copyright owners. The most common example of a joint work is when a book or article has two or more authors. However, if a book is written primarily by one author, but another author contributes a specific chapter to the book and is given credit for that chapter, then this probably wouldn’t be a joint work because the contributions aren’t inseparable or interdependent.
The U.S. Copyright Office considers joint copyright owners to have an equal right to register and enforce the copyright. Unless the joint owners make a written agreement to the contrary, each copyright owner has the right to commercially exploit the copyright, provided that the other copyright owners get an equal share of the proceeds.
Can two or more authors provide contributions to a single work without being considered joint authors for copyright purposes?
Yes. If at the time of creation, the authors did not intend their works to be part of an inseparable whole, the fact that their works are later put together does not create a joint work. Rather, the result is considered a collective work. In this case, each author owns a copyright in only the material he or she added to the finished product. For example, in the 1950’s, Vladimir writes a famous novel full of complex literary allusions. In the 1980’s, his publisher issues a student edition of the work with detailed annotations written by an English professor. The student edition is a collective work. Vladimir owns the copyright in the novel, but the professor owns the annotations.
What rights do copyright owners have under the Copyright Act?
The Copyright Act of 1976 grants a number of exclusive rights to copyright owners, including:
- reproduction right — the right to make copies of a protected work
- distribution right — the right to sell or otherwise distribute copies to the public
- right to create adaptations (called derivative works) — the right to prepare new works based on the protected work, and
- performance and display rights — the rights to perform a protected work (such as a stageplay) or to display a work in public.This bundle of rights allows a copyright owner to be flexible when deciding how to realize commercial gain from the underlying work; the owner may sell or license any of the rights.
Can a copyright owner transfer some or all of his specific rights?
Yes. When a copyright owner wishes to commercially exploit the work covered by the copyright, the owner typically transfers one or more of these rights to the person or entity who will be responsible for getting the work to market, such as a book or software publisher. It is also common for the copyright owner to place some limitations on the exclusive rights being transferred. For example, the owner may limit the transfer to a specific period of time, allow the right to be exercised only in a specific part of the country or world, or require that the right be exercised only through certain media, such as hardcover books, audiotapes, magazines or computers.
If a copyright owner transfers all of his rights unconditionally, it is generally termed an “assignment.” When only some of the rights associated with the copyright are transferred, it is known as a “license.” An exclusive license exists when the transferred rights can be exercised only by the owner of the license (the licensee), and no one else — including the person who granted the license (the licensor). If the license allows others (including the licensor) to exercise the same rights being transferred in the license, the license is said to be non-exclusive.
The U.S. Copyright Office allows buyers of exclusive and non-exclusive copyright rights to record the transfers in the U.S. Copyright Office. This helps to protect the buyers in case the original copyright owner later tries to transfer the same rights to another party.
Transfers of copyright ownership are unique in one respect. Authors or their heirs have the right to terminate any transfer of copyright ownership 35 to 40 years after it is made.
Why should I register my work with the U.S. Copyright Office?
You must register your copyright with the U.S. Copyright Office before you are legally permitted to bring a lawsuit to enforce it.
You can register a copyright at any time, but filing promptly may pay off in the long run. “Timely registration” — that is, registration within three months of the work’s publication date or before any copyright infringement actually begins — makes it much easier to sue and recover money from an infringer. Specifically, timely registration creates a legal presumption that your copyright is valid, and allows you to recover up to $150,000 (and possibly lawyer’s fees) without having to prove any actual monetary harm.
How do I register a copyright?
You can register your copyright by filing a simple application and depositing one or two samples of the work (depending on what it is) with the U.S. Copyright Office.
There are two ways to file a copyright application:
- file online (using the Copyright Office’s electronic eCO system), or
- file a traditional printed copyright form (Forms PA, TX, VA, SR, etc.), each of which is specific to the type of work (for example, Form TX is only for text works). Note, the all-purpose Form CO was discontinued as of July 2012. If you submit a Form CO after July, 2012, you will have 30 days to correct the submission.
Which is right for you?
- If you’re comfortable with electronic filing—that is, preparing and filling out forms online—the eCO system is less expensive ($35 instead of $65 for Forms VA, TX, PA and SR) than using paper forms, and will likely result in faster turnaround.
- If you are used to the traditional application or feel more comfortable using a form that is specific to your type of work, use the familiar forms (Forms VA, TX, PA, SE, or SR) and pay a higher fee ($65 per application).
The eCo system and the paper forms can be found at www.copyright.gov. Note, the fees change periodically. Check with the Copyright Office for current fees.
What is PreRegistration?
As a result of legislation in 2005, the Copyright Office has instituted a preregistration procedure for certain classes of works that have a history of pre-release infringement. According to the Copyright Office, preregistration serves as a place-holder for limited purposes, mainly where a copyright owner needs to sue for infringement while a work is still being prepared for commercial release. Preregistration is not a substitute for registration, and its use is only appropriate in certain circumstances. A work submitted for preregistration must meet three conditions: (1) the work must be unpublished; (2) the work must be in the process of being prepared for commercial distribution in either physical or digital format—that is, film copies, CDs, computer programs to be sold online—and the applicant must have a reasonable expectation of this commercial distribution, and (3) the work must fall within the following classes of works determined by the Register of Copyrights to have had a history of infringement prior to authorized commercial distribution. The works determined to be eligible under this requirement are: motion pictures, sound recordings, musical compositions, literary works being prepared for publication in book form, computer programs (which may include videogames), advertising or marketing photographs. Preregistration is not a form of registration but is simply an indication of an intent to register a work once the work has been completed and/or published. When the work has been completed, it may be registered as an unpublished work, and when it has been published, it may be registered as a published work. A person who has preregistered a work must register the work within one month after the copyright owner becomes aware of infringement and no later than three months after first publication. If full registration is not made within the prescribed time period, a court must dismiss an action for copyright infringement that occurred before or within the first two months after first publication. To preregister, a copyright owner must apply online; no paper application form is available. The effective date is the day on which the completed application and fee for an eligible work have been received in the Copyright Office.
How are copyrights enforced? Is going to court necessary?
If someone violates the rights of a copyright owner, the owner is entitled to file a lawsuit in federal court asking the court to:
- issue orders (restraining orders and injunctions) to prevent further violations
- award money damages if appropriate, and
- in some circumstances, award attorney fees.
Whether the lawsuit will be effective and whether damages will be awarded depends on whether the alleged infringer can raise one or more legal defenses to the charge. Common legal defenses to copyright infringement are:
- too much time has elapsed between the infringing act and the lawsuit (the statute of limitations defense)
- the infringement is allowed under the fair use doctrine (discussed above)
- the infringement was innocent (the infringer had no reason to know the work was protected by copyright)
- the infringing work was independently created (that is, it wasn’t copied from the original), or
- the copyright owner authorized the use in a license.
If someone has good reason to believe that a use is fair — but later finds herself on the wrong end of a court order — she is likely to be considered an innocent infringer at worst. Innocent infringers often don’t have to pay any damages to the copyright owner, but do have to cease the infringing activity and sometimes must pay the owner for the reasonable commercial value of that use.
Copyrighting Your Software — Why Bother?
If you publish computer software, the single most important legal protection available to you is the federal copyright law. Here’s how to make it work for you.
If you publish computer software, the single most important legal protection available to you is the federal copyright law. But many software authors don’t take advantage of its protections, and risk finding themselves virtually at the mercy of infringers — all because they don’t send in a simple registration form as soon as the software is published.
- 1 Why the Automatic Copyright Isn’t
- 2 Statutory Damages
- 3 Registration: Cheap Insurance
Why the Automatic Copyright Isn’t
Even if you don’t put that little © on your work, you automatically get a copyright the instant your work of expression becomes fixed in a tangible medium. Theoretically, this means that you own the copyright, and no one may copy, distribute, display or make adaptations of the work without your permission. So far, so good.
The problem comes if someone infringes on your copyright. Then, suddenly, the protection is no longer automatic. It’s up to you to file a lawsuit in federal court and to convince the judge to order the other party to stop the infringement and compensate you for your losses.
What’s more, even though you own the copyright, you can’t file your lawsuit unless you have registered the copyright with the U.S. Copyright Office. Until you register, there’s nothing you can do to stop the infringement.You may be thinking, “Big deal — I’ll register if and when someone infringes on my software and I need to file a lawsuit.” But if an infringement occurs, you’ll want to register in a hurry so you can file your suit — and “expedited registration” costs several hundred dollars extra.
There is another — even more compelling — reason to register, and as soon as possible after the software is published: As a practical matter, if you haven’t registered in a timely manner, it may not be worthwhile for you to bring a lawsuit against an infringer.
Federal lawsuits usually cost a hellish amount of money in lawyer fees and litigation costs. This means that to make a copyright infringement lawsuit worthwhile, you must be able to pry a lot of money loose from the other party.
But it is often very hard to show exactly how much monetary damage a copyright infringement has caused. So even if you can prove infringement, you may not be able to show very much in the way of actual damages. This means that you might end up spending $50,000 on legal fees but recover only $40,000 in actual damages. In other words, relying on the recovery of actual damages creates a substantial risk that you will lose money bringing the suit.
But if you registered the work before the infringement began or within three months of the date the work was published, you may be entitled to recover from the infringer, in addition to your actual damages:
- your attorney fees and court costs, and
- “statutory damages” — special damages of up to $100,000 per infringement — without having to establish what damage you actually suffered.
Registration: Cheap Insurance
Not all the benefits of prompt registration relate to litigation. In fact, early registration can help keep you out of court. That’s because an infringer who knows that you could recover substantial statutory damages in court may be more willing to negotiate and settle out of court.
Since registration is so easy, costs only $45 per work and provides significant benefits, it’s one of the great insurance deals of all time.
Of course, if what you’re publishing probably has no value to anyone but you, you may want to just place a copyright notice on the material and not bother to register. But in most situations, if your work is valuable enough to publish, it’s valuable enough to register.
Registering a Copyright
Registering a copyright registration is a simple process; you don’t need an attorney. All you need to do is to fill out a brief application form, which requires some basic information about the work, including:
the title of the work
who created the work an when, and
who owns the copyright.
You send the application, a fee ($45) and one or two copies of all or part of the copyrighted work to the U.S. Copyright Office in Washington, D.C. Web & Software Development by Stephen Fishman (Nolo), contains all of the necessary forms and step-by-step instructions for applying for copyright registration.