St. Louis Copyright Fundamentals Attorneys
Copyright is the form of intellectual property right that exists in the author of a creative work “fixed” in a tangible medium. The following types of works are among those afforded copyright protection: paintings and drawings, photographs, prose (both fictional and nonfictional), dance, films, three dimensional sculptures, musical scores and arrangements and computer software. The owner of a copyright in a work has the exclusive right to display, copy,distribute, perform and make derivative works from the copyrighted work. Copyright derives strictly from federal statute; there is no state or common law copyright protection.
The basic tenet of copyright is that a copyright exists in the “author of a work” upon creation of the work. There is one important exception to this rule called the “work made for hire” doctrine. Under this doctrine an employer owns the copyright in a work created by the employer’s employee if the work is created within the scope of the employee’s employment. It is important to keep in mind that the work made for hire doctrine does not apply to independent contractors. Therefore, if one engages an independent contractor to create a work protected by copyright, such as a photograph, software or a web page, it is absolutely necessary to obtain from that contractor an assignment of the contractor’s copyright in the work created. If such an assignment is not obtained, the independent contractor will own the underlying copyright in the work and may be able to create an identical work for a competitor.
As stated previously, the work must meet a minimal creativity test and it must be fixed in a tangible medium. Generally, a collection or statement of facts is not copyrightable because it is not sufficiently creative, although a compilation of facts may be copyrightable if the particular arrangement of those facts demonstrates sufficient creativity. In the case of Feist v. Rural Telephone Service Company the United States Supreme Court held that an alphanumeric listing that appears in a phone directory is not protectable by copyright. Up until that time it was arguable that the level of effort of the creator in creating the work (as in assembling a database) could affect whether a copyright was warranted. The Supreme Court said that level of effort has nothing to do with it – the work must have a “spark of creativity.”
Section 101 of the Copyright Act provides a definition of “fixed in a tangible medium,” A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
This requirement would prevent, for example, an improvisational jazz musician from claiming a copyright in a work performed without a musical score unless the performance is being simultaneously recorded. The rationale for this requirement, of course, is that the work be sufficiently and consistently identifiable so that it is clear to potential infringers when an infringement occurs
Despite the fact that a copyright exists in a sufficiently creative work from the moment it is fixed in a tangible medium of expression, the law is clear that the copyright cannot be enforced until the copyright has been registered with the United States Copyright Office. Therefore, no suit can be brought for copyright infringement until an application has been filed and the copyright registered. If an infringement which commenced before registration continues after registration, the copyright owner can enforce his or her rights with respect to the period after the registration date, but remedies for infringement prior to that date may be limited. Therefore, the best course is always to file the application to register copyright as soon as possible after the work has been fixed in a tangible medium.
It used to be that a notice of copyright affixed to the work was necessary for the owner to claim a valid copyright in that work, but the notice requirement was eliminated in 1989. Nonetheless, in order to prevent an infringer from validly asserting an “innocent infringement” defense (“I didn’t know that the author was claiming a copyright in the work”) which may serve to reduce damages, it is still advisable to include a copyright notice on all works. Such a notice includes the name of the copyright claimant and the date the work is first published and takes the following form: © Bernard Gerdelman 2009
There are a couple of other facts worth knowing about copyright. First, the Copyright Act specifically provides that copyright does not apply to single words or short phrases, such as song titles or slogans (e.g. bumper stickers or slogans on T shirts). The rationale for this is that if copyright could be claimed in a word or short phrase, then any use of that word or phrase could be considered copyright infringement, which could limit the right of freedom of expression. It is also worthy of note that the term of copyright protection has been extended several times since enactment of the Copyright Act. The term of a copyright in a work created on or after January 1, 1978 is currently the life of the author + 70 years, or, in the case of a work for hire, 95 years. © Bernard W. Gerdelman 2009