Copyright Infringement

Copyright Infringement Attorneys

Copyright law is the oldest of the US intellectual property laws, dating back to US Constitution in Article I, Section 8, Clause 8 and is codified in Title 17 of the US Code.

Simply put, copyright law protects any idea that an author or creator puts in tangible form. If someone is infringing on your creation, you may need a copyright attorney.

The elements that make something copyrightable are:

  1. Originality.
  2. There is an author, songwriter, artist that has created the work.
  3. This creation has to be tangible such as writing, a written song, a piece of choreography that has been saved on film, or a piece of art on canvas. It cannot be stressed enough that AN IDEA IS NOT COPYRIGHTABLE UNLESS IT IS IN TANGIBLE FORM.

Copyright protects original literary works, musical work, dramatic works, pictorial works, motion pictures, sound recordings, architectural works, sculpture and other works of art.

It does not protect a title, so there can be any number of plays named "Hamlet". It also does not protect a phrase such as "just do it" which is protected for Nike by trademark. There is also no protection in lists of things such as the phone book or accounting tools, unless there has been some definite creativity proven in creation of same.

Who Owns the Copyright?

The question often arises "who owns the copyright?" and the answer at first is simply the author. This gets more complex when the author has created the work as an employee of someone else and does it on the employer's time with the employer's equipment. At this point, the work becomes a "work for hire" and belongs to the employer.

The copyright owner has the following exclusive rights in their creation:

• They may reproduce the work in any form of copy • They may use the original as the basis for another work (a derivative work) • They may distribute the work to the public • If the work is displayable they may place it on display • Any rights that come under the Visual Rights Act

The fact that the copyright owner has these rights "exclusively" means that only the owner of the work has these rights and anyone else attempting to use the works has infringed on their copyright.

Fair Use:

Fair use is a widely used affirmative defense in cases of copyright infringement. The principle of fair use was developed in the law so that people could use some parts of copyrighted work for educational purposes, criticism, comment, news reporting, scholarship and/or research.

When a court is considering a fair use defense they will typically look at four factors which are basically:

1. How was the work used? Use of anything for profit will generally not be fair use. 2. Was the copyrighted work published or unpublished? If the work was unpublished, then the use is less likely to be fair use. 3. How much of the copyrighted work is used? Using a line from a book is more likely to be fair use than using a full chapter of the book. 4. Will this use affect the potential market for the work? The best example here is music copying, if a whole CD is copied then that is one less copy that will be sold.

Fair Use Case:

An interesting example of a fair use case is Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991). This is a somewhat well known case in which the Kinko's photocopying shop offered chapters of a textbook in what was known as a "coursepack". The first problem for Kinko's was that there was "excessive" copying of the textbook up to 25% and their next problem was that they offered these coursepacks for sale which cut into the merchantability of the book. The court found that this was not fair use even though it was used educationally.

How is infringement determined?

1. The infringer must be shown to have had access to the copyrighted work. This is fairly simple now with many works being available on the internet. 2. The two works must appear to their audience to be substantially similar.

When do you receive a copyright?

The minute that any idea is put into tangible form a copyright is created.

How do you protect your copyright?

1. Register the work with the Library of Congress. A lawsuit for infringement cannot be brought unless the work has been registered in this way.

2. Indicate somewhere on the work that you are claiming copyright in it and that you are the person to contact for permission of use. This is done with the © symbol followed by the date and your name or company name. Example: ©John Doe 2013. This provides notice to the public that someone is claiming copyright and such notification can make a better case for infringement.

This is just a quick overview of what is a complex and interesting area of law.