A copyright is a legal construct that allows its owner the exclusive right to make copies of a creative work. Unlike patents, which are generally directed either to the function or surface ornamentation of an invention, copyrights are directed to innovative expressions. Examples of copyrightable subject matter include (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
Furthermore, unlike patents, which require a time consuming and costly process to secure, copyrights exist the moment a work is created and then fixed in a tangible form. For example, if I take a blank canvas and toss a bucket of paint onto it, I have a recognizable copyright in the painted canvas once the paint has struck the canvas (or presumably dried). If I sing a song, and record it onto a CD, I have a recognizable copyright in the song on the CD once the song has been recorded. Moreover, it is worth noting that the bar is set very low when it comes to originality in copyright law. That is, while the law does require an element of originality for an author’s work to qualify for a copyright, that requirement is generally satisfied by something more than a de minimus amount of creativity.
Once a copyrighted work is fixed in a tangible form, the owner is granted a bundle of rights. These include the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Like patent law, copyright law is not recognized in the United States criminal codes. That is, if someone is stealing from you by selling copies of a song that you authored and fixed into a tangible form, prosecutors and criminal judges will not have your back. As such, the singer, the poet, the sculptor, and the architect’s principal recourse to protect what they have created is to enforce their copyrights in civil litigation.
When it comes to copyright litigation, an important consideration to keep in mind is registration of the copyright with the Copyright Office. While copyrights are created the moment they are fixed in a tangible form, securing a registration on the work that you just created is an action that will offer you significant further protection. For example, registering your copyrighted work with the Copyright Office is prima facie evidence of the existence of a Copyright, and may provide you with the opportunity to obtain statutory damages and attorney’s fees during a subsequent litigation concerning your copyrighted work. Failing to have the registration could severely impact your ability to make yourself whole in the event someone has infringed your copyrighted work. Specifically, you may only being able to obtain an injunction against an infringer in litigation. What this means is that you may only be able to stop them from continuing to infringe your copyright and not be able to collect damages. The good news is that obtaining a copyright registration is generally not an overly difficult task, at least compared to obtaining a utility patent, and generally is relatively inexpensive and quick to secure. In cases of doubt, seeking a copyright registration is generally a wise thing to do.
This article was authored by John P. Powers, is intended to keep readers current on matters affecting intellectual property, and is not intended to be legal advice. If you have any questions about its content, please leave a comment below.
©John P. Powers, 2021, all rights reserved.