FAQs: Copyright Laws

Copyrights protect "original" "works of authorship" that are "fixed" in a tangible medium of expression. Prior to the 1976 Copyright Act, federal copyright law protected a work of authorship when the work was "published." Today, as soon as a work is "fixed," it is protected by federal copyright laws. A work is fixed when the work is communicated for more than a transitory duration or when it is sufficiently permanent to be perceived. Thus, when this author finished writing this paragraph and saved the paragraph in his word processor, the paragraph became fixed. For audio and/or visual works, the work is fixed if a copy of the work is being made simultaneously with the performance.

"Works of authorship" include the following: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. The terms in this list are construed quite broadly—the text on this web page is protected as a "literary work."

Copyright does not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Facts, phrases, and blank forms are also not protected.

An "original" work of authorship occurs when someone creates a work without copying from a copyrighted work or using another copyrighted work. If two people, working separately, write the exact same book, then both books are original and both get copyright protection.

The copyright owner's rights
The copyright owner has the exclusive right to reproduce the work, to prepare derivative works (works based on one or more preexisting works), to distribute copies of the work, and to perform or display the work publicly. These rights, however, have certain limitations within the law. The major limitation on these exclusive rights is the concept of "fair use." It is a fair use of a copyrighted work if the work is used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Therefore, if a person were to use the prior paragraph to define what the rights of a copyright holder are, then to comment that copyright holders shouldn't have these rights, this comment would be a fair use of the proceeding paragraph.

The copyright notice
Before March 1, 1989, a copyright notice had to be placed on any copyrighted material. After this date, copyright notices aren't required. Thus, if this web page were to have no copyright notice, the material on the page is still copyrighted. The major benefit to having a copyright notice on material is that someone using or copying material containing a copyright notice is not allowed to argue that he or she didn't know that the material was copyrighted. For this reason, copyright notices are recommended. The recommended form of the copyright notice is the copyright symbol, followed by the date of publication and the copyright owner's name, and concluding with the phrase "All rights reserved." The copyright notice for this page would be " 1998, Schmeiser, Olsen, and Watts. All rights reserved." The copyright symbol and the statement "All rights reserved" are required to retain certain international rights. The United States allows a simpler form of copyright notice. In the U.S., copyright notice must have a copyright indication, or "Copyright" or "Copr.", the date of publication, and the name of the owner of the copyright. For this page, the copyright notice would be "Copr. 1998, Schmeiser, Olsen, & Watts". The copyright notice should be conspicuous.

Registration of copyrighted material.
Registration is highly recommended!! When someone uses copyrighted material in violation of the copyright laws, there is an "infringement" of copyrighted material. The person who violated the copyright laws is an "infringer." When a copyright owner sues a person (the infringer) for infringement, there are certain remedies (the means by which a right is enforced or a violation of a right is compensated) that the copyright owner can receive. These remedies include preventing or stopping the copyright infringer from using the copyrighted material and compensating the copyright owner for the infringer's use. The copyright owner must prove that the copyrighted material has been infringed (see infringement) to receive any remedy.

Once infringement has been proved, the copyright owner can receive costs and attorneys' fees and statutory damages, but ONLY IF the copyrighted material has been registered. If the copyrighted material is not registered with the U.S. Copyright office, the copyright owner must prove actual damages. For instance, if someone copies this paragraph and sells this paragraph to buyers, this author must prove how much revenue the infringer received from the buyers. Furthermore, the infringer then has the opportunity to show how many profits were derived from the revenue. If the infringer sold the paragraph at very low cost and made no profits, this author would be entitled to no actual damages.

Statutory damages, however, are decided by the court and range from $500-$20,000. In the previous example, this author would be entitled to at least $500, without proof of profits made by the infringer. In addition, this author may be entitled to attorneys' fees and costs. Finally, any copyright holder is entitled to an injunction that would stop the infringer from using or selling the copyrighted material.

Registration is a fairly simple process. There are specific forms for each type of copyrightable material (literary work, musical work, etc.). Two copies or photographs of the material are sent with the appropriate form and fee to the copyright office.

Infringement of copyright.
Infringement of copyright occurs when someone uses copyrighted material in violation of the copyright laws. Generally, the violation consists of copying and selling the copyrighted material or using the copyrighted material in another work. For instance, if someone were to copy the text from this paragraph into another document and add more material to the new document, the act of copying and using this paragraph is a violation of the copyright laws because the person took what was not hers. Violation of any of the exclusive rights (see "The copyright owner's rights") that the copyright statute confers to the copyright owner is an infringement.

A copyright owner must prove that he or she is the owner of the copyrighted material and that the person accused of copying actually copied the copyright owner's material. Generally, copying is proved through" substantial similarity." If the accused had access to the copyrighted material (knew about and referred to the copyrighted material) and the accused's work is substantially similar to the copyright owner's work, then copying is inferred. It must be remembered, however, that the accused can copy the work and still not be an infringer if the copying is fair use. See "The copyright owner's rights."

If the copyright owner proves that the copier infringed his copyright, the copyright owner may have an injunction issued by the court that will force the infringer to stop using the copyrighted material. In addition, the court may order that the material be taken from the infringer (impounded).

For the copyright owner to get money from the infringer, registration of the material is important. If the material is registered, the copyright owner may get statutory damages, costs, and/or attorneys' fees. If the material is not registered, however, the copyright owner must prove actual damages. See "Registration of copyrighted material" for more on the differences between actual and statutory damages.

Regardless of whether the material is registered, it is possible for the infringer to be charged with a criminal offense. (See Copyright and Patent Litigation for more information.) Prior to 1998, the infringement had to be "willful" and done for commercial (i.e.--monetary) gain. Congress amended this section of the copyright statute in 1998 after a computer bulletin board operator provided commercial software to users for no charge. Now, if someone willfully infringes one or more copyrights by reproduction or distribution of one or more copyrighted works having a total retail value of $1,000, this person will face fines and a possible one-year jail sentence. If the value of the material is greater than $2,500, even stiffer penalties will result.

Therefore, if a bulletin board operator posts the entire Microsoft Windows NT Workstation program (about $280 per copy) on his bulletin board, and four or more people get the program from the bulletin board, the bulletin board operator would be liable for the fines and the possible jail time. If, however, a rogue computer user would somehow post the same program on a Bob's Internet Service Provider bulletin board without Bob's consent or knowledge (an unlikely, but possible, scenario), the computer user would be liable for fines and possible jail time, but Bob's Internet Service Provider would not be liable. Bob's Internet Service Provider did not "willfully" violate the copyright laws.

Duration of copyrights
New works are protected for the life of the originator plus 50 years. Certain works will vary from this somewhat.