Frequently Asked Questions
Over our years of brand protection representation, we have compiled a list of the most frequently asked questions surrounding copyright law. See these questions compiled below.
What's the difference between a copyright and a trademark?
Copyright and trademark are both forms of intellectual property protection, but they serve different purposes. Copyright protects original works of authorship, such as literary, artistic, or musical creations, by granting exclusive rights to the creator. Trademark, on the other hand, protects words, phrases, symbols, or designs that distinguish the source of goods or services, preventing others from using similar marks that may cause confusion among consumers.
What is the Digital Millennium Copyright Act?
The Digital Millennium Copyright Act (DMCA) is a United States copyright law that addresses digital copyright infringement and provides a framework for copyright owners to protect their works online. It includes provisions for safe harbors for internet service providers (ISPs), notice and takedown procedures for infringing content, and anti-circumvention measures to protect digital rights management (DRM) systems.
What is considered a copyright?
A copyright is a form of intellectual property protection that grants exclusive rights to the original creators of literary, artistic, musical, or other creative works. It provides the creators with the right to control the reproduction, distribution, display, and performance of their works and allows them to authorize or prohibit others from using their creations without permission.
What is a derivative work?
A derivative work is a new work that is based on or derived from an existing copyrighted work. It involves transforming, adapting, or incorporating elements of the original work into a new creative expression, requiring permission from the copyright owner to create and distribute the derivative work.
What is the 'poor man's copyright' and is it legit?
The "poor man's copyright" is a concept that suggests mailing a copy of your own work to yourself and keeping it sealed, with the idea that the postmarked envelope serves as proof of the work's creation and the date it was created. However, it is not a recognized or formal method of copyright protection and holds no legal weight in the United States or other countries that adhere to the Berne Convention. To have proper copyright protection, it is advisable to register your work with the appropriate copyright office.
Do you need to register your work for copyright protection?
No, copyright protection exists automatically upon the creation of an original work fixed in a tangible form. Registration is not required for copyright protection to be established. However, registering your work with the appropriate copyright office provides additional legal benefits, such as the ability to file a lawsuit for infringement and claim statutory damages.
Do I need to register my works to sue someone for copyright infringement?
No, registration is not a prerequisite for suing someone for copyright infringement. You can file a lawsuit for copyright infringement without prior registration. However, registering your work with the appropriate copyright office is generally recommended as it provides important legal advantages, such as the ability to seek statutory damages and attorney's fees in the case of infringement.
What is 'Work Made For Hire'?
In copyright law, a work made for hire refers to a work created by an employee within the scope of their employment, where the employer is considered the legal author and copyright owner of the work. Additionally, certain categories of works created by independent contractors can also be considered works made for hire if they fall within specific statutory criteria and there is a written agreement designating them as such.
How can I monitor if someone is committing copyright infringement?
Regular online searches: Use search engines and specialized tools to search for your copyrighted work or related keywords to identify potential instances of infringement on websites, social media platforms, or other online channels.
Copyright monitoring services: Consider employing professional copyright monitoring services that utilize advanced technology to scan the internet for instances of potential infringement and provide you with reports or alerts.
What is the Copyright Claims Board?
The Copyright Claims Board is a tribunal established by the United States Copyright Office as part of the Copyright Alternative Dispute Resolution (ADR) system. It provides a streamlined and cost-effective forum for resolving smaller-scale copyright infringement claims, allowing copyright owners to seek remedies and damages without filing a lawsuit in federal court. The Copyright Claims Board is available for disputes with total damages of $30,000 or less.
What are the types of copyright infringement?
In the United States, the types of copyright infringement include:
Reproduction: Unauthorized copying, duplicating, or replicating a copyrighted work in its entirety or a substantial portion of it.
Distribution: Unauthorized selling, renting, lending, or otherwise distributing copies of a copyrighted work to the public.
Public Performance: Unauthorized public display or performance of a copyrighted work, such as in theaters, concert halls, or public gatherings.
Public Display: Unauthorized showing or exhibition of a copyrighted work, such as in galleries, museums, or public spaces.
Derivative Works: Creating new works that are based on or derived from a copyrighted work without permission, such as adaptations, translations, or modifications.
Digital Copyright Infringement: Unauthorized reproduction, distribution, or display of copyrighted works through digital means, including online platforms, websites, file-sharing networks, and streaming services.
What are the primary defenses to copyright infringement?
In the United States, some primary defenses to copyright infringement include:
Fair Use: The fair use doctrine allows for limited and transformative use of copyrighted works without permission for purposes such as criticism, commentary, education, parody, or research. Whether a particular use qualifies as fair use depends on several factors, including the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the market for the original work.
First Sale Doctrine: The first sale doctrine allows the owner of a lawfully acquired copy of a copyrighted work to sell, lend, or otherwise dispose of that particular copy. It limits the control of the copyright owner over subsequent sales or distribution of that specific copy.
Other defenses to copyright infringement may include lack of originality or creativity in the allegedly infringed work, expiration of copyright protection, unauthorized derivative work being a transformative or independent creation, and consent or license from the copyright owner.
What are the remedies for copyright infringement?
The remedies for copyright infringement in the United States can include:
Injunction: The court may issue an injunction to stop the infringing activity, preventing further unauthorized use or distribution of the copyrighted work.
Actual Damages: The copyright owner may be awarded actual damages, which can include the proven financial losses suffered as a result of the infringement. This may include lost profits or the value of the licensing fees that could have been obtained.
Statutory Damages: In cases where actual damages are difficult to determine or prove, the court may award statutory damages, which are predetermined amounts established by copyright law. Statutory damages can range from a minimum of $750 to a maximum of $30,000 per work infringed, or up to $150,000 per work if the infringement is found to be willful.
Attorney's Fees and Costs: The prevailing party in a copyright infringement lawsuit may be entitled to recover reasonable attorney's fees and costs incurred in pursuing the case.
Destruction or Impoundment: The court may order the destruction or seizure of infringing copies or materials associated with the infringement.
Licensing and Royalties: In some cases, the court may order the infringer to pay licensing fees or royalties to the copyright owner for the use of the copyrighted work.
It's important to note that the specific remedies available and their application can vary depending on the circumstances of each case and the discretion of the court. Consulting with a copyright attorney is crucial to understand and pursue the appropriate remedies in a copyright infringement claim.
When does copyright protection expire?
In the United States, copyright protection typically lasts for the life of the author plus an additional 70 years after the author's death. For works created by a corporate entity or anonymous works, the duration is 95 years from the publication date or 120 years from the creation date, whichever is shorter.
What is the public domain?
In United States copyright law, the public domain refers to works that are not protected by copyright and are freely available for use by the public. These works either have expired copyrights, were not eligible for copyright protection, or have been intentionally dedicated to the public domain by their creators. As public domain works, they can be used, copied, modified, or distributed without the need for permission or payment.
What is a Creative Commons license?
A Creative Commons license is a type of license that allows creators to specify the permissions and restrictions for the use of their copyrighted works. It provides a standardized way for authors, artists, and other creators to grant permissions beyond what is permitted by default under copyright law. Creative Commons licenses offer different levels of permissions, ranging from allowing unrestricted use to specifying conditions such as attribution, non-commercial use, or share-alike requirements.
Can I copyright software?
Yes, software can be copyrighted in the United States. Copyright protection extends to the source code, object code, and other elements of computer software. To obtain copyright protection, the software must be an original work of authorship fixed in a tangible medium and meet the requirements of originality, creativity, and expression.
Can I copyright something that entered the public domain?
No, you cannot copyright something that has entered the public domain in the United States. Once a work is in the public domain, it is no longer protected by copyright, and anyone is free to use, copy, modify, or distribute it without permission or restriction. Copyright protection cannot be regained for works that have already entered the public domain.
Can I copyright my work that is registered in another country?
Yes, you can generally seek copyright protection for works that are registered in another country. Copyright protection is territorial, meaning it is granted based on the laws of each individual country. If your work is registered in a foreign country, you may be able to seek copyright protection in the United States by following the registration process outlined by the U.S. Copyright Office.