Intellectual Property Newsletter
Copyright Protection Under the 1976 Copyright Act
“Original works of authorship” are protected by Federal law, which gives their authors certain exclusive rights in those works. This protection is called copyright. Article I, Section 8 of the US Constitution authorizes Congress to regulate copyrights, which are generally governed by the 1976 Copyright Act located in Title 17 of the United States Code.
US copyright protection is available to both published and unpublished works and gives the copyright owner exclusive rights to do and authorize others to:
- Reproduce the work;
- Make derivative works;
- Distribute copies of the work;
- Perform or display the work publicly; and
- Transmit sound recordings of the work in digital audio.
Also, Federal copyright law grants “moral rights” to authors of one-of-a kind visual art and authors of numbered, limited editions of works that have 200 or fewer copies. The “moral rights” are split into attribution and integrity. The right to attribution ensures that a work is correctly attributed to an author and protects an author from being associated with works created by others. The right of integrity protects the author’s works from modification or destruction that would harm the author’s reputation or honor.
Section 102 of Title 17 regulates the scope and subject matter of copyrights. Generally, to enjoy copyright protection, a copyrighted work must be “an original work of authorship” that is “fixed in a tangible medium of expression.” However, Federal copyright law protects only the expression of ideas not the ideas themselves. The copyright automatically activates without the need for publication or registration.
An original work may be fixed in either a copy or a phonorecord. “Copies” are any material object (e.g.: a sheet of paper, a book, or a carved stone) “from which a work can be read or visually perceived.” A “phonorecord” is the material object in which sound is fixed (e.g.: a cassette tape or a compact disc). Copyright protects the expression the original work itself, not the material copies or the phonorecords. Thus if you buy a book, you may lend or sell that book to another, but you cannot reproduce that book and disseminate your own copies.
The categories of works protected include the following:
- literary works,
- musical and dramatic works,
- pantomimes and choreographic works,
- pictorial, graphic, and sculptural works,
- motion pictures and other audiovisual works,
- architectural works, and
- sound recordings.
This category should be construed broadly. For example, “literary works” are defined as “works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia….” What is and what is not a literary work is far from obvious. Most people would consider a play or a screenplay to be a literary work; however, these and other dramatic works have their own category even though they seem literary. On the other hand, automated databases and computer programs are also considered literary works even though there really is not anything “literary” about them. If you have any doubt when registering a copyright, you should consult an attorney who specializes in copyright or intellectual property law.
Musical and Dramatic Works
Both original compositions and original arrangements (or new versions of earlier compositions) are categorized as musical works. On the other hand, dramatic works include spoken text, plot, and directions for action. They are works that are intended to be performed. Dramatic works include plays, scripts and screenplays.
Pantomimes and Choreographic Works
The composition and arrangement of dance movements intended to be accompanied by music is considered choreography. Pantomimes, on the other hand, are the imitation or acting out of characters, situations, or other events. Although both types of work must be fixed in a tangible medium, neither need be performed or tell a story to be protected.
Pictorial, Graphic, and Sculptural Works
Original pictorial, graphic, and sculptural works are all considered “visual arts.” They can be two-dimensional or three-dimensional and be works of fine, graphic, or applied art.
Motion Pictures and Other Audiovisual Works
Motion pictures are audiovisual works that consist of a series of images that impart an illusion of motion when shown together at high speed. These works include any accompanying sound. Typically, they are fixed in film, videotape or videodisk.
Original designs of “structures that are habitable by humans and intended to be both permanent and stationary” can be protected by copyright as architectural works. Such works include the overall form of the design as well as the arrangement and composition of elements and spaces. Standard features or elements that are functionally required cannot be protected by copyright.
A “series of musical, spoken, or other sounds” that have been fixed in a material object can be protected as a sound recording. The copyright generally protects both the performance and the production/engineering. The underlying work is protected separately from the sound recording. For example, on a new CD by a recording artist, the performance and engineering is protected as a sound recording, but the song itself is protected as a musical work. If the lyrics were written by someone other than the recording artist, that person may hold the copyright to the musical work (song) while the recording artist might hold the copyright to the sound recording. Sound recordings that were fixed prior to February 15, 1972 are not protected by Federal copyright law. State law may apply to these sound recordings.
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