Copyright law distinguishes between an idea and its expression. Only the expression is protected. Thus, copyright law does not protect ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries revealed by copyrighted works.
All works eligible for copyright protection must meet two specific requirements. First, the work must be fixed in a copy or some other tangible medium, e.g. book, audio cd, photograph. Second, the work must be the result of original and independent authorship.
Under limited circumstances, a copyright protected work may be used without permission if the use is considered fair. Four factors, laid out in 17 U.S.C. § 107, are considered when determining "fair": 1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.
The difference between fair use and infringement is often difficult to determine. Generally, using only a small portion of a work, for purposes of news reporting, parody, education, scholarship, criticism, or commentary, in a way that will not affect the value of the copyrighted work may be considered fair use.
No publication, or registration in the Copyright Office, is required to secure copyright protection. Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a tangible medium of expression for the first time. It is possible and advisable to register a copyright with the Copyright Office as a legal formality intended to make a public record of the basic facts of a particular copyright. Registration provides evidence of the owner’s title to the work and entitles the owner to claim statutory damages and attorney’s fees in some infringement actions. Registration is also a useful means of providing actual notice of copyright to those who search the Copyright Office records.
A copyright for a U.S. work must be registered or pre-registered prior to initiating a lawsuit. Federal copyright registration requires that a copyright application be filed with the U.S. Copyright Office. There are three ways an application may be submitted to the U.S. Copyright Office: (1) registration online; (2) registration with a fill-in form CO (mail-in document that is processed more quickly than paper forms); and (3) registration with paper forms. More information about these forms is available at: http://www.copyright.gov/register. The fee for filing a copyright application is $35 if it is submitted online. The fee for the two other methods discussed above is $45.
Registration may be made at any time within the life of the copyright. To register a work, the application to be submitted to the U.S. Copyright Office must include the following three items: (i) a completed application, (ii) a non-refundable filing fee and (iii) a non-returnable copy of the work being registered. A copyright registration is effective on the date the U.S. Copyright Office receives all required application items notwithstanding how long it takes to process the application.
It is advisable but not required for copyright owners to append a copyright notice to each copy of their work. The copyright notice consists of three elements: the word “copyright”, “copr.” or the copyright symbol “©”; the year of first publication; and the copyright owner’s name. Notice can prevent inadvertent infringement and prevent an infringer from claiming innocent infringement.
Work Made For Hire
In most cases, the person who creates a work is presumed to be the owner of the work and to hold copyright in the work. However, when a work is “made for hire,” there is no such presumption. A “work made for hire” arises in two situations. The first is in an employer-employee relationship. A work created by an employee in the scope of his or her employment is considered a “work made for hire” and ownership of the work vests in the employer. The employer may be a firm, an organization, or an individual. The second situation in which a “work for hire” may be created is when a work is: 1) specially ordered or commissioned, 2) falls into one of the nine categories of work listed in the statute (e.g. a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, etc.), and 3) the parties have a signed written agreement stating that the work will be considered a “work made for hire.”
It is worth noting that the definition of “employee” is not as clear cut as it might seem. So, regardless of whether the author is an employee or an independent contractor, a written agreement is usually advisable to make authorship clear as well as to clarify expectations between the parties. For more information, please visit “Works Made for Hire under the 1976 Copyright Act”, published by the United States Copyright Office.
Duration of Copyright Protection
Copyright protection remains vested in the author for the duration of the copyright unless transferred by written assignment. The duration of copyright protection depends upon the identity of the author or authors, when the work was created and when the federal copyright protection was first obtained. Generally, for works created on or after January 1, 1978, the following terms apply:
- A work of an individual author is protected for the life of the author plus 70 years.
- Joint works prepared by two or more authors are protected for the life of the last surviving author plus 70 years.
- Anonymous works, pseudonymous works and works made for hire are protected for 95 years from the date of publication or 120 years after creation, whichever is shorter.
Additional Copyright Protection in Puerto Rico
The Federal Copyright Act preempts this matter in Puerto Rico only with respect to an author's economic and patrimonial rights. Puerto Rico and state jurisdictions are allowed to legislate with respect to authors' non-economic or extrapatrimonial rights.
Puerto Rico’s Civil Code recognizes intellectual property as a type of property that may be owned. The Civil Code, on 21 L.P.R.A. § 1401, grants exclusive rights to the author or beneficiary of a literary, scientific, artistic, and/or musical work. The author or beneficiary has the right to benefit from the work and the exclusive prerogatives to attribute to him/herself or retract its authorship, dispose of the work, authorize its publication and protect its integrity, in accordance with the special laws in effect on the matter.
There is a Copyright Registry, created by Act 96 of July 15, 1988, 31 L.P.R.A. § 1402, et seq., in the Puerto Rico Department of State where books of any kind, graphic works, photographs, musical compositions, literary works of any kind, sculptures, and computer program source codes, architectural designs, all kinds of phonograms, and audiovisual works, including videos, may be registered by request of their authors or beneficiaries. To register a copyright, the applicant must submit to the Department of State a copyright application form, which may be found on the Department of State’s website, along with two copies of the work to be copyrighted, and an application fee of thirty dollars ($30). The application may be found on the Department of State’s website at: www.estado.gobierno.pr/
Registration of a copyright in the Copyright Registry gives the author or beneficiary the right to request injunctions against threatened or actual infringement and collect damages suffered by the owner as a result of the infringement. To enjoy the benefits and protections granted by Puerto Rico law, the rights must be registered with the Puerto Rico Department of State.