© 2011 Craig Ginsberg
What is a copyright? What protections does a creator of intellectual property obtain by filing a copyright? How does a creator of intellectual property obtain copyright protection? What types of intellectual property may be protected by copyright law? What are the limitations to copyright protection of intellectual property? These are all simple questions with complex answers. There are various legal, practical, creative, and financial issues that surround each of theses questions and the purpose of this article is to answer each of these questions, and will serve as a short, simple guide to the basics and fundamentals of copyright law in the United States.
What is a copyright?
According to the United States’ Copyright Act, a copyright is a protection of intellectual property that is “[an] original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works.” One obtains copyright protection of their intellectual property under the United States copyright laws at the moment of the creation of the intellectual property, and lasts for seventy years past the death of the author, if the work was created after January 1, 1978.
How does one obtain copyright protection?
Contrary to popular belief, in order to receive intellectual property protection for creative works, formal copyright registration is not required under United States law. To ensure complete copyright protection, however, copyright owners should use the copyright registration process. The registration process gives formal notice to any potential competing claimants of the creator’s creation of a copyright protection in their intellectual property. The copyright registration process may be completed in one of the following three ways:
- Online registration through the electronic Copyright Office, which, according to the United States Copyright Office, is the preferred method for literary works, visual arts works, performing arts works, motion pictures, and sound recordings;
- Filing an online form entitled Form CO, which is a bar-scanned form available through the Copyright Office’s web site, to be completed online and sent to the Copyright Office; and
- Registration through various paper forms, depending on the subject of the registration. For example, one would use Form PA to register performing arts works with the Copyright Office.
What types of intellectual property may be protected by copyright law?
As stated above, according to the United States Copyright Act, copyright protection may be provided to any intellectual property that are “original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works.” There are various copyright protections afforded to a creator of intellectual property that depend on the nature of the work created. For example, the creator of a play, ballad, dance, song, theatrical performance, movie, or related work gives the creator of that intellectual property the right to display their work to the public. In addition, intellectual property may receive copyright protection as a “work made for hire” if the work is prepared by an employee in the scope of his or her employment.
These are only some examples of copyright-protected works and is not intended to be an exhaustive summary. All variations of intellectual property that are subject to copyright protection are enumerated in The Copyright Act.
What are the limitations to copyright protection of intellectual property?
There are several limitations to copyright protection of intellectual property. A major statutory limitation of copyright protection is known as the fair use doctrine. According to the fair use doctrine, copying or imitating copyright-protected intellectual property without compensating the creator or obtaining the creator’s consent does not always necessarily amount to copyright infringement. Courts routinely apply several statutory factors in determining whether a use of copyright-protected intellectual property constitutes a fair use. These factors, according to the Copyright Act include:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Another major limitation of copyright protection is that mere ownership of a copy of intellectual property, such as a book, manuscript, or painting does not give the transferee legal copyright protection if the intellectual property has already obtained copyright protection. Many of these works are identified as copyright-protected works by a symbol of ©.
Lastly, another limitation of copyright protection is that although minors may obtain copyright-protected rights in intellectual property, state law may regulate the business dealings involving minors. The Copyright Act, a federal law, does not automatically preempt state law as it pertains to business dealings involving minors.
A copyright is a protection of intellectual property for an author’s “original work,” which include many mediums, such as a painting, motion picture, song, dance, drawing, or art. One may obtain registration of copyright protection through one of three ways, either
- online registration
- registration of Form CO, or
- submission of various paper forms. According to the United States Copyright Act, intellectual property that is “[an] original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works” is subject to copyright protection.
As discussed above, there are unique copyright issues that surround the various types of intellectual property. Lastly, there are several limitations to the protections of the Copyright Act, such as the fair use doctrine.