What is copyright?
Author: Karen Y. Kim
Copyright is a set of intellectual property rights that automatically vests in a person who fixes an original work of authorship in a tangible form of expression. There are many different types of works, including books, poems, plays, blog posts, movies, paintings, photographs, illustrations, computer programs, architectural works, musical compositions, and sound recordings, to name a few.
The three main elements to copyright are originality, creativity, and fixation. Works are original when they are independently created by a person and have at least a minimal degree of creativity. To be independently created, you must have created it yourself, without copying. According to the Supreme Court, a work must have a “spark” and a “modicum” of creativity. Some things do not reach that required modicum of creativity, such as short phrases, slogans, titles, names; lists of ingredients or contents; variations of lettering, coloring, or typographic ornamentation; and familiar symbols or designs. While copyright protects expression, it does not protect ideas, procedures, methods, processes, concepts, principles, systems, or discoveries.
A work is fixed when it is captured in a sufficiently permanent medium in such a way that the work can be perceived, reproduced, or communicated for more than a brief time.
The primary objective of copyright is to induce authors to create new works and make them available to the public by rewarding them with intellectual property rights. By providing the public access to these creative works, the public is enriched.
Who are copyright owners? Anyone could be a copyright owner. If you’ve ever taken a photograph or written a poem, letter, or blog, you are an author and a copyright owner. Companies, organizations, or other employers can be copyright owners as well. Works created by an employee within the scope of employment are owned by the employer under the “works made for hire” doctrine. Copyright ownership can also come from assignment contracts or wills.
U.S. copyright law provides copyright owners with these exclusive rights:
- Perform or display the work publicly
- Reproduce the work
- Distribute copies of the work to the public by sale, rental, or lease
- Produce derivative works based on the work
- Authorize others to exercise these exclusive rights
The term of copyright protection depends on when the work was created. Works created on or after January 1, 1978, have a copyright term of life of the author plus seventy years after the author’s death. If the work is a join work, the term is for seventy years after the last surviving author’s death. For works made for hire and anonymous or pseudonymous works, the copyright term is 95 years from publication or 120 years from creation, whichever is shorter.
Because copyright vests automatically when an original work of authorship is fixed, registration is not mandatory. However, a copyright registration can provide the copyright owner with enhanced protections and so is still very important. In the United States, registration is necessary to enforce the copyright through litigation. If there is a lawsuit, timely registration also allows a copyright owner to seek statutory monetary damages and attorneys’ fees. A registration can also provide notice to the public that someone claims copyright protection for a work.