Copyright is a legal concept and a category of intellectual property rights that protects writing and other artistic works or classifications of works against replication or unregulated reproduction and distribution. In other words, copyright coincides with the protection of artistic or creative expression.
Examples of works protected by a copyright are literary works such as fictional and nonfictional writings, dramatic works including stage play and accompanying music, musical works such lyrics and arrangement, sound recordings, audio-visual recordings such as motion picture, artworks including sculpture and paintings, photographs and other pictorial or graphic images, and architectural works, among others.
Legal foundations of copyright law in the United States
In the United States, copyright is a a legal concept based on constitutional and statutory laws. The following are the foundation or legal basis of copyright law:
- United States Constitution: Under Article I, Section 8, Clause 8 of the U.S. Constitution, otherwise known as the Copyright Clause, the U. S. Congress has been empowered to give authors limited exclusive rights to their works. Note that this clause is also known as the “Copyright and Patent Clause” and thus, also serves as the constitutional basis of patent law in the U.S.
- Copyright Act of 1976: The Copyright Act of 1976 repealed and superseded the Copyright Act of 1909. The U. S. Congress formulated this law as a response to intellectual property questions raised by emerging technologies, especially new forms of communications such as television, radio, audio recording, and motion picture. Nonetheless, this statutory law serves as the primary basis of copyright laws in the U.S.
- Copyright Act of 1909: The Copyright Act of 1909 remains effective for works that are published or registered before the Copyright Act of 1976 took effect on 1 January 1978. Under this old law, works prior to the enactment of the newer law has a maximum copyright tenure of 95 years from the date of publication.
- United States Code: Title 17 of the U.S. Code codifies and outlines all copyright laws in the U.S., specifically the Copyright Act of 1976 and its subsequent amendments. It also gives the Copyright Office an operating principle for overseeing the registration of copyrights.
Obtaining and securing copyright in the United States
A copyright is obtained and secured the moment the work is created. Publication is not required. Furthermore, unlike patents or other categories of intellectual property, there is no need for registration. In other words, copyright is secured automatically upon the creation of work.
Under the U.S. laws, “creation” pertains to the fixing of a work in a copy or phonorecord for the first time. A copy is any material object from which the work can be read or visually perceived directly or using a machine. Examples of a copy are manuscripts and books, sheet music, videotape, and microfilm, among others. On the other hand, phonorecords include all material objects in which sounds can be fixed. Examples are compact discs, vinyl, and cassette tapes, among others.
Despite the immediate and automatic nature of copyright, an artist or creator can still register his or her work in the Copyright Office. To register, an applicant can either apply online or through mail. He or she should also pay a non-refundable filing and forward a nonreturnable deposit or a copy or replication of the work being registered.
Advantages of copyright registration in the United States
The following are the advantages of copyright registration in the United States:
- Registration is necessary for an infringement suit for a particular work originating in the U.S. and it also establishes a prima facie evidence of ownership of work create before or within five years of publication.
- Registration of work made within three months after its publication gives the owner rights to statutory damages and legal fees in case of an infringement suit; non-registered work only gives the owner right over actual damages and profits.
- Registration gives the owner protection from importing of the infringed creation as it allows him or her to record such with the U.S. Custom Service
Duration of copyright protection in the United States
Works that were created on or after 1 January 1978 have an automatic protection starting from the moment of creation. The protection lasts for the entire lifetime of a particular creator plus an additional 70 years after his or her death. For a work with two or more creators, the additional 70 years of protection starts from death of the last surviving author.
Anonymous works or those made by creators using pseudonyms, as well as works made for hire have a protection duration of 95 years from publication or 120 years from creation, whichever is shorter.
Works created and published be 1 January 1978 have a total term of protection lasting for 95 years. However, works created before this date but were not published have tenure of protection lasting the entire lifetime of the creator and additional 70 years after his or her death. Works that was created prior to 1 January 1978 but was published before 2003 will have a protection that lasts until 2048.
Other facts about copyright in the United States
Copyright can also protect the ornamental appearance of a product, especially considering that almost every creation can be seen as art. However, in order to qualify for such, a product or specifically, its ornamental appearance should satisfy the following requirements:
- Original intellectual creation: The shape, form, and other aspects of visual appearance of the product should not merely be copied from another product or an existing and popular object with established symbol and meaning. In addition, things that are obvious such as common shapes cannot be subjected under copyright protection. The shape and form or the visual entirety of the product should be a new creation that was not there before.
- Form and shape not necessary to obtain technical effect: Like the considerations for design patent and trade dress, the form and shape should not have a utilitarian function or technical effect.
- Not mere trend or style: If the creator of the product uses color considerations, shape and form considerations, or other visual considerations just to stylize the product or follow a certain trend, the creation is thereby not entitled to a copyright protection.
EDITOR’S NOTE: This article is part of a series about intellectual property rights in the United States. (1) An introduction to intellectual property rights in the United States; (2) Understanding copyright law in the United States; (3) Facts about patent law in the United States; (4) The basics of trademark law in the United States; (5) An overview of trade dress law in the United States; (6) Background on trade secret law in the United States
