What is a copyright?
A copyright extends to any an original work of authorship that is put into tangible form. As such, a
copyright does NOT extend to an idea or thought, but merely protects the tangible, physical
expression of the thought.
The law defines work of authorship very broadly. It includes dramatic, musical, academic,
photographic, choreographic, and even architectural works. Truthfully, the term work of authorship
includes almost any form of expression, so long as the expression is embodied in tangible form, and
shows some modicum of original thought, no matter how crude or humble. There are, admittedly, a
few exceptions to the broad expanse of copyrightable subject matter, but it is generally safe to
assume that any tangible expression of original thought is copyrightable subject matter.
A few examples of copyrightable subject matter include:
literary works, including prose, poetry, or computer software programs
musical works, including lyrics, if any
dramatic works, including accompanying music
motion pictures, and audiovisual media
sound recordings
architectural works
pantomimes, dance routines, and choreography.
A copyright gives its owner with the exclusive rights in the following acts, as they pertain to the
copyrighted work:
the right to copy or reproduce the work;
the right to publicly display or perform the work;
the right to transmit the work;
the right to prepare works that derive from the original work.
What is the term of a copyright?
For any work of authorship that was created after January 1, 1978 the copyright will last as long as
the author lives, plus seventy (70) years thereafter. In the event the author is unknown or
anonymous, or in the event the work was authored under a "work-for-hire" arrangement, the
copyright may remain in effect for ninety-five (95) years from the date of first publication, or one
hundred twenty (120) years from the date of creation, whichever is longer.
How do I obtain a copyright?
An author obtains a copyright in her work of authorship the instant the work is fixed into a tangible
form. Thus, recording a copyright is NOT a prerequisite to having rights in one's work.
However, one must have a recorded copyright in order to bring an action to enforce one's copyright.
An owner of an unrecorded copyright may nonetheless have a remedy against one who copies his
unrecorded work, but she must first record the copyright in her work before seeking to enforce her
rights. Further, the author may obtain a remedy for these pre-recordation acts of infringement, even
if infringement ceases upon recording. Even though an author need not record her copyright in
order to have rights, the recording of a copyright gives the author certain procedural advantages in
any lawsuit brought to enforce the copyright. Thus, it is quite often advisable to record one's
copyright, even though recordation is not a prerequisite to ownership of the copyright.
In order to record a copyright in a work, one must submit an application form (there are different
types of forms for respective different types of works) and deposit copy(s) of the work to the United
States Copyright Office, which is overseen by the Library of Congress in Washington, DC.
Generally, recording a copyright is a simple process, and most applications are allowed. One noted
Kansas City intellectual property lawyer humorously opines, " ... if you can fall out of bed in the
morning, you can record a copyright...." Indeed, recent statistics from the Library of Congress
estimate that 98.5 % of all applications for copyright are granted. Thus, denials of applications are
not unheard of, but they are quite rare.
What is copyright infringement?
Infringement occurs whenever any person, without permission of the owner of the copyright, violates
any of the author's rights (some of these rights are set forth above) in his or her work. It is very
important to note that an infringer need NOT profit from his or her acts in order to be held liable for
acts of infringement. An infringer can be held liable for damages, even if the infringer never
receives a single penny as a result of his actions.
Also, it is important to note that infringement occurs ONLY when the infringer copies an owner's work
of authorship. For example, suppose two authors may independently create substantially similar
works. In that event, there is no infringement because there was no copying. Congress has carved
an exception to the general rule by entitling members of the public to "fair use" of all copyrighted
work. Fair Use of a copyrighted work includes a limited right to use the work for criticism, teaching,
scholarship, news reporting or comment. Whether a use constitutes fair use, however, is a highly
fact-specific inquiry, and depends on numerous factors. Thus, it is often difficult for one -- even
skilled lawyers -- to predict whether a use of a copyrighted work would be "fair use." As such, it is
rarely safe to assume that any use of a copyrighted work is fair use, as generally the only way to
determine such is by engaging in expensive litigation.