A Very Brief Summary of Copyright Law

September 3, 2019

Copyright is a form of protection of intellectual property provided by the laws of the United States to authors of “original works of authorship” (i.e., not copied) that are “fixed in a tangible medium of expression” (i.e., written or recorded). Under U.S. copyright law, the owner of a copyright has the exclusive right to (and to authorize others to):

  • Copy the work;
  • Prepare derivative works based upon the work (e.g., make a movie from a book);
  • Distribute copies of the work to the public;
  • Perform the work publicly (e.g., movies, theater, dance); and
  • Display the work publicly (e.g., for pictorial, graphic, or sculptural works).

When a work is published under the authority of the copyright owner, a notice of copyright may be placed on all publicly distributed copies. The use of the notice is the responsibility of the copyright owner and does not require permission from, or registration with, the U.S. Copyright Office. While copyright registration is not necessary, it provides a number of benefits to the copyright owner. Among these benefits are:

  • Registration establishes a public record of the copyright claim;
  • Registration is necessary for works of U.S. origin before an infringement suit may be filed in court (at least to the extent the suit is based on federal copyright infringement—see below);
  • Registration is prima facie evidence in court of the validity of the copyright if the registration occurs before or within five years of publication;
  • If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorneys’ fees may be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner under federal copyright law.

Although federal copyright law commonly provides basis for infringement claims, misuse of a copyright may, under the right circumstances, also give rise to causes of action under other statutes or the common law.  For example, misuse of proprietary information may constitute of breach of contract or give rise to an unjust enrichment claim.

The U.S. government charges a filing fee for copyright registration, which varies based on whether the registration is filed electronically or on paper. The USPTO fees are generally modest—less than $100.  The USPTO fees do not include legal fees.

Use of the copyright notice, while not mandatory, is important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if the work carries a proper notice, the court will not give any weight to a defendant’s claim of an innocent infringement (i.e., where the defendant claims that he or she did not realize that the work was protected by copyright).

The notice for visually perceptible copies should contain three elements. They should appear together or in close proximity on the copies. The elements are:

  • The symbol “©” or the word “Copyright”;
  • The year of first publication of the work; and
  • The name of the owner of copyright in the work (example: © 2008 Jane Doe).
For more information about "A Very Brief Summary of Copyright Law," contact Andrew J. Clarkowski at aclarkowski@axley.com or 608.283.6705.