Entertainment & Intellectual Property
Copyright
Below is a brief overview of copyright law, and should not be relied upon as a complete statement of the law, rights, liabilities, or as legal advice. How the law applies to each situation and the outcome varies greatly depending upon the facts of each individual case.
What is protected?
Federal law provides protection for “original works of authorship fixed in a tangible medium of expression”. This includes musical compositions, sound recordings, literary works, artwork, choreography, film and other forms of artistic expression. This protection exists from the moment the work is made tangible; for example, the moment a song is recorded, a picture is sketched, or a poem is written down.
Who owns the work?
The law states that the owner of the work is the creator of the work, but who this person or entity is depends upon the situation. In some instances, the creator’s employer, or a person or entity that commissioned the work, may own the work instead of the creator.
Often, more than one person is the creator of the work, and in this case all of the creators may be joint owners with equal rights to the work. For example, Songwriter asks Keyboardist to join him in the studio and contribute to the recording. Instead of playing the music provided to him by Songwriter, Keyboardist improvises on the recording. Keyboardist and Songwriter are now joint owners of the work unless there is a contract between the two which clearly states otherwise.
What rights does the owner have?
The owner has the exclusive right to reproduce, perform, publicly display, distribute and make derivates of the original work. Therefore, the owner is the only person with the authority to allow others to use (license) or to sell all of the rights to (assign) his or her work.
Why Register?
You do not need to register your work with the United States Copyright Office for your work to be protected since, as stated above, protection begins the moment you make the work tangible. However, registration is highly recommended for several other reasons:
- The work must be registered prior to filling suit for infringement, and the cost of registration increases significantly at that time.
- An award of statutory damages, costs and attorney’s fees is not available if registration is completed after the infringement.
- The Certificate of Registration is prima facie evidence of the originality of the work and that the work is owned by the registrant.
- Registration prior to infringement greatly increases the probability of a settlement prior to litigation.
- Registration makes it easier for potential licensees to locate the owner of the work.
What about the “Poor Man’s Copyright”?
The Poor Man’s Copyright is the term used to describe the process of mailing the work to oneself, and is erroneously thought to be a substitute for registration. It is not. The Poor Man’s Copyright provides none of the protections of registration.
What is Copyright Infringement?
Copyright infringement is the unauthorized use of any of the owner’s exclusive rights to the work. Even use which without financial gain is infringement. For example, musician uses a three second sample of a Beatles song when recording his composition and only distributes copies including the sample for promotional purposes and does not sell any copies. This is copyright infringement.
What about Fair Use?
Fair Use is a statutory exception which allows, in very limited instances, the use of a protected work without the permission of the author. There are several factors which must be weighed against each other to determine whether an unauthorized use is legally permissible.
|
