The Nature of Copyright
Copyright law in the United States is geared toward effecting a compromise between a copyright owner’s right to exploit his or her original, creative work for financial gain and the public’s interest in obtaining the free beneficial use of the work. Governed exclusively by federal law, copyright protection exists in original works of authorship that are fixed in any tangible medium of expression, now know or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or other device. Congress has not sought to protect all works of authorship. Copyright law protects only original works that fall into eight broad, overlapping categories.
The categories are:
- literary works
- musical works, including accompanying lyrics
- sound recordings
- dramatic works, including accompanying music
- pantomimes and choreographic works
- motion pictures and other audiovisual works
- architectural works
- pictorial, graphic, and sculptural works
Copyright law does not protect ideas, procedures, processes, methods of operation, concepts, principles or discoveries, regardless of the form in which they are described, explained, illustrated or embodied in a work. Only the expression of the idea, concept or principal is protected, provided it is original, creative expression that is fixed in some kind of tangible medium. Short phrases, slogans, titles, character names, and characteristics of fictional characters not protectable under copyright law may be protected under trademark law or unfair competition law.
Exclusive Rights of Copyright Owners
Subject to fair use and other limitations, copyright owners enjoy a number of exclusive rights. A copyright owner has the right to do or permit any of the following:
- to reproduce the copyrighted work in copies or phonorecords
- to prepare derivative works based on the underlying copyrighted work
- to distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease or lending
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly
- in the case of sound recordings, to perform the work publically by means of a digital audio transmission
The law provides a copyright owner with a number of remedies in case of an infringement. Remedies include the right to an award of money damages and infringer profits, and to an injunction to prohibit future infringements and to obtain the impoundment and disposition of infringing copies. The range of remedies is increased, such as the ability to obtain statutory damages and an award of attorney’s fees, if the owner registers and, if applicable, records its copyrights before the infringement occurs.
Commercial Exploitation of Copyrights
Commercial exploitation of a copyright during its term, which can last the life of the author plus 70 years in the case of authors who are individuals, can be done by the owner directly or by a sale, assignment or licensing.
The divisibility of copyrights increases the commercial exploitation opportunities available to owners. An owner can keep all of his or her copyrights or sell one or more of them, or allow a licensee, either on an exclusive or non-exclusive basis, to exploit any of them subject to the payment of a royalty. The right sold or licensed need not be the whole of any particular copyright. The owner may only sell or license the right to exploit a particular copyright in a specific geographic or product market for a limited period of time in a particular medium.
Literary works provide an excellent example of how copyrights can be divided and exploited. A writer can self-publish, either digitally or in print, and distribute the work on his own. Doing this, however, may be cost prohibitive. As an alternative, the author can contract with a publisher. The publication agreement would provide for the payment of royalties, and possibly an advance, in exchange for the right to publish the work in hardcover, trade paperback, mass market paperback, and in other print media product markets in the United States or other specified geographic markets. Subject to a royalty split, the contract may also give the publisher “subsidiary rights.” These rights could include the right to license the work to a production company for the creation of a motion picture or television series or a dramatic work for distribution in a particular geographic area. Suffice it to say, copyright divisibility increases the opportunity for authors to make money with their works.
Copyright Legal Services
Glens Falls lawyer Neil H. Lebowitz represents authors, owners, and licensees of copyrights with, among other things:
- Registration of copyrights and copyright transfers in the United States Copyright Office
- Advising joint owners of copyrights, and employers or persons commissioning works made for hire, about their rights
- Conducting due diligence investigations and obtaining licenses, consents or other clearances in order to avoid a copyright infringement
- Negotiating contracts for the purchase, sale, assignment, and licensing of copyrights
- Assisting clients with accountings and audits of royalty payments under licensing agreements
- Representing clients in copyright disputes