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The Basics of Copyright

Mention the word copyright and most business owners will think it has nothing to do with them, and that it is only relevant to the publishing or music industry. While copyright certainly protects the authors of literary, musical, pictorial or graphic works, each of these categories are broader than commonly understood. Thus, an employee manual or a software program may be registered as a literary work, while a map or architectural drawings may be registered as "pictorial, graphic, and sculptural works." A basic understanding of copyright is essential to protecting your intellectual property and to guard against unintentional infringement of the copyrights of others.

What is Copyright Protection?

Copyright protects original works of authorship that are fixed in a tangible form of expression, and includes literary works, musical works, dramatic works, choreographed works, pictorial, graphic and sculptural works, motion pictures, sound recordings and architectural works.

The copyright law gives the owner of the copyright the exclusive right to:

  1. Reproduce the work;
  2. Prepare derivative works;
  3. Distribute copies of the work to the public by sale, lease or other transfer of ownership;
  4. Perform the work publicly in the case of literary or other artistic works;
  5. Display the work publicly in the case of literary or other artistic works; and
  6. In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

What May Be Copyrighted

In order to be copyrighted, a work must be:

(a) original and

(b) fixed in a tangible medium of expression.

The originality requirement requires only that the work be the independent creation of its author, and does not imply that the work otherwise be novel, have artistic merit, be truthful, or have lawful content. For example, a news account that is completely invented and is defamatory may be both false and contain unlawful (i.e., defamatory) content, yet be copyrightable.

Any work of authorship that is not "fixed" is not copyrightable. Thus, improvised dances or musical performances that are not recorded in any medium are not copyrightable and may be copied with impunity.

Several categories of material that may not be copyrighted include titles, names, short phrases and slogans (these may qualify as trademarks); ideas, procedures, methods, systems or processes (these may qualify for a patent); or works consisting entirely of information that is common property and contains no original authorship, such as standard calendars, or lists or tables taken from public documents or other common sources.

How to Secure a Copyright

A copyright is secured automatically when a work is created, i.e., when it is fixed in a tangible medium for the first time. There is no requirement that the work be published or registered with the Copyright Office in order to obtain a copyright, although registering the work does secure certain benefits. Generally, once a work is created, its author obtains exclusive rights to the work from the date of its creation for the duration of the author's life, plus an additional period of 70 years following the author's death. Like any other property right, a copyright may be sold, transferred and inherited.

In some cases, the actual creator of the work is not the owner for copyright purposes. For example, if the work is commissioned, or created by an employee within the scope of his employment, the work is considered a "work for hire" and the employer is considered the owner of the work.

Frank J. Monteleone

Frank J. Monteleone

Monteleone Law

11 Broadway, Suite 615

New York, NY 10004

fjm@monteleonelaw.com