Copyright law protects works of authorship, fixed in a tangible medium of expression, from which they can be perceived, reproduced or otherwise communicated either directly or with the aid of a machine or device.

Works of authorship include the following categories:

1. Literary works

2. Musical works, including any accompanying words.                                        

3. Dramatic works, including any accompanying music.

4. Pantomimes and choreographic works.

5. Pictorial, graphical and sculptural works.

6. Sound recordings, and

7. Architectural works.

Note that copyright law includes - and is not limited to - these categories.

Key points:

• Short phrases, such as words, titles and slogans, are not subject to copyright protection.

• The expression must be more than a general idea to be protected by copyright law. Underlying ideas are not protected, nor are facts.

• If the work can be considered a "useful article" - that is, its utilitarian function outweighs its artistic expression, then it is not protected by copyright law. A famous copyright case involved a bicycle rack made from cylindrical tubing and shaped so that it appeared like a long squiggle. The court deemed the rack not protected by copyright because its features were meant to hold the bikes in the rack. Its aesthetic appeal was secondary.

Authorship: If the creator is not employed to create the work, then the creator owns the copyright. Joint creators jointly own the copyright.

An employer will own the copyright under certain circumstances:

1. The work was created by the employee within the scope of his or her employment.

2. The work was specially ordered or commissioned for use as a contribution to a collective work (e.g., movie or translation).

When someone outside the company is hired to create the work, several factors need to be considered to determine whether the creator was an employee (whose work belongs to the employer) or a contractor (who holds the copyright). These factors are:

1. Employer's right to control the manner and means by which the product is accomplished.

2. The skill required.

3. The source of the tools.

4. The location of the work.

5. The duration of the relationship between the parties.

6. Whether the employer has the right to assign additional projects to the employee/contractor.

7. The extent of the employee/contractor's discretion over when and how long to work.

8. The method of payment

9. The employee/contractor's role in hiring and paying assistants.

10. Whether the work is part of the regular business of the employer.

11. Whether the employer is in business.

12. The provision of employee benefits

13. The tax treatment of the employee/contractor.

Community for Creative Non-Violence et al. v. Reid, 490 U.S. 730 (1989).

A copyright owner has several exclusive rights:

1. Reproduction of the copyrighted work in copies.

2. Preparation of derivative works based on the copyrighted work.

3. Distribution to the public via sale, rental, lease or lending.

4. For literary, musical, dramatic or choreographic works, pantomimes, movies or other audiovisual work, performance of the copyrighted work publicly.

5. For literary, musical, dramatic or choreographic works, pantomimes, and pictorial, graphical or sculptural works - including images from movies - to display the copyrighted work publicly.

Copyright infringement

A copyright is infringed when one of the copyright holder's rights is violated. Typically, copyright infringement occurs when someone, without permission:

1. Copies a copyrighted work without permission,

2. Makes a substantially similar copy of the work, or

3. Distributes a copy of the work.

Liability for copyright infringement may occur if someone knowingly assists or encourages another to infringe a copyright.

Defenses to copyright infringement include fair use, invalid copyright, independent creation, consent/license, inequitable conduct, copyright misuse, First Amendment or statute of limitations. If you have questions about copyright laws, your rights as a copyright holder or someone accused of infringement, please contact our office for a consultation. We have worked with copyright holders and people accused of infringement.  Let us offer our expertise to assist you in your copyright matter.