Copyright Law

The Nature of Copyright

Copyright law in the United States is geared toward effecting a compromise between a copyright owner’s right to exploit his or her original, creative work for financial gain, and the public’s interest in obtaining free, beneficial use of the work. Governed by federal law, copyright protection exists in original works of authorship that are fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or other device.

Congress has not sought to protect all works of authorship, but only original works that fall into eight broad, overlapping categories. The categories are:

• literary works
• musical works, including accompanying lyrics
• dramatic works, including accompanying music
• pantomimes and choreographic works
• motion pictures and other audiovisual works
• sound recordings
• architectural works
• pictorial, graphic, and sculptural works

Copyright law does not protect ideas, procedures, processes, methods of operation, concepts, principles or discoveries, regardless of the form in which they are described, explained, illustrated or embodied in the work. Only the expression of the idea, concept or principal is protected, provided it is original, creative expression that is fixed in some kind of medium. Short phrases, slogans, titles, character names, and characteristics of fictional characters not protectable under copyright law may be protected under trademark or unfair competition law.

Exclusive Rights

Subject to fair use and certain other limitations, copyright owners enjoy a number of exclusive rights. The copyright owner has the right to do or authorize any of the following:

• reproduce the copyrighted work in copies or phonorecords;
• prepare derivative works based upon the underlying copyrighted work;
• distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease or lending;
• in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
• in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
• in the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

For infringement of a copyright, the law provides the owner of the right with a number of remedies, including the right to an award of actual damages and infringer profits, and for injunctions to prohibit future infringements and to obtain the impoundment and disposition of the infringing copies. Legal remedies are significantly enhanced, such as the ability to obtain statutory damages and an award of attorney’s fees, if the copyright owner has registered and, if applicable, recorded his or her copyright before the infringement occurs.

Commercial Exploitation

Commercial exploitation of a copyright during its term can be done by the owner directly or by a sale, assignment or licensing. Copyrights are divisible. The copyright owner can retain all of his or her exclusive rights or sell one or more of them, or permit a licensee, either on an exclusive or non-exclusive basis, to exploit any of them subject to the payment of a royalty. Further, the right licensed or sold need not be the whole of the exclusive right. It may only be the right to exploit a particular exclusive right in a specific geographic market for a limited time and in a particular medium.

Literary works provide an excellent example of how copyrights can be commercially exploited. Consider a novel. The writer can self-publish, in print or digitally, and distribute the work on his or her own. Doing this, however, might be cost prohibitive. As an alternative, the author, assuming the property is desirable, can contract with a publisher, either directly or through a literary agent. The publication agreement would provide for the payment of royalties, and possibly an advance, in exchange for the right to publish the novel in hardcover, trade paperback, mass market paperback, and other print media product markets in the United States and Canada and other designated geographic markets. Subject to a royalty split, the contract may also give the publisher subsidiary rights, such as the right to license the novel to a production company for creation of a motion picture or television series or dramatic work for distribution in specific geographic markets. Suffice it to say, imagination tempered by practicality comes into play when developing a strategy for exploiting copyrights.

Legal Services

Glens Falls lawyer Neil H. Lebowitz represents authors, owners, and licensees of copyrights with, among other things:

• Registration of copyrights and copyright transfers in the United States Copyright Office
• Advising joint owners of copyrights, and employers or persons commissioning works made for hire, about their rights
• Conducting due diligence investigations and obtaining licenses, consents or other clearances in order to avoid an infringement
• Negotiating contracts for the purchase, sale, assignment, and licensing of copyrights
• Assisting clients with accountings and audits of royalty payments under licensing agreements
• Representing clients in copyright disputes

For More Information

For assistance with a copyright matter, call or write the Glens Falls law office of Neil H. Lebowitz.