Copyright FAQs

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Click to ExpandWhat is IP?

IP, also known as intellectual property, is a division of law that protects works created by the human intellect. These works may require a copyright, trademark, or patent to ensure added protection for the author, artist, writer and inventor.

Click to ExpandWhat kinds of IP are there?

Copyright (©): Offers exclusive rights to authors/artists of original works including literary, artistic, performance, audio, and visual displays. As of January 2007, copyright protects the author/artist for 70 years after the author’s death. Works that are made for hire have 95 year protection terms, or 120 years, whichever lapses first. Copyright registration, required to pursue action for copyright infringement, is filed with the US Copyright Office.

Patent: Offers exclusive rights to inventors for their original inventions. A patent protects the inventor by excluding others from copying their invention. Patents protect the invention for 20 years from the date the application is filed with the US Patent and Trademark Office.

Trademark (™ or ®): Offers exclusive rights to names, symbols or designs. Trademark registration protects the owner of the mark from potential confusion with competitors when the mark is placed in commerce. Although others are permitted to make similar goods as the trademark owner, the trademark itself is protected by national and international laws. Trademark protection lasts as long as the mark is used in business, commerce or trade.

Click to ExpandWhat is a trademark?

A trademark is a word, phrase, symbol, design, or a combination of those things, that identifies and distinguishes the source of the goods. Trademarks last as long as they are being used in commerce.

Click to ExpandDo you have to register a trademark?

No. ™ for trademark or ℠ for service mark (the same as a trademark only it indicates a service rather than a product) lets the public know that you claim ownership of the word, phrase or design when the mark is placed next to it. Once an owner registers a trademark, the symbol ® replaces ™. Advantages to registering a trademark include: informing the public that you claim possession of the mark; creating a legal presumption that you own the mark; offering the exclusive right to use the mark nationally and internationally in connection with any goods or services listed in the registration; offering you the opportunity to bring an action in federal court concerning the mark; allowing you to obtain registration of the mark in foreign countries, giving you the ability to file with the U.S. Customs Service to prevent importation of foreign goods that infringe on the mark.

Click to ExpandWhat is trade dress?

Trade dress is a product’s design, color, packaging or other unique feature that doesn’t serve a function. Trade dress has to be nonfunctioning and distinct in order to be protected.

Click to ExpandWhat is a design patent?

A design patent is a patent granted for a new, original, and ornamental design for an article of manufacture. It protects a product’s appearance.

Click to ExpandWhat is copyright?

A copyright is a form of protection for authors of original works. A copyright gives the owner(s) the exclusive right to reproduce, adapt, distribute, perform, and display the work.

Click to ExpandWhat can be copyrighted?

Any form of original work. It includes: literary works, dramatic or musical works, including any accompanying lyrics, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures or other audiovisual works, sound records, architectural works. The government views the categories broadly. Computer programs and compilations may often be registered as literary works. Maps and architectural plans may be registered as pictorial, graphic and sculptural works. Works that are not written, recorded, or somehow made into a physical work are not eligible for copyright protection. For example, choreography or speeches that have not been written down or recorded are not protected. Unprotected works include: titles; names; short phrases and slogans; familiar symbols or designs; fonts, letters or colors; and recipes. The government does not protect ideas, methods, procedures, systems, processes, concepts, principles, discoveries or designs under copyright. Original authorship is mandatory in order to register a work, so works that are entirely made of information that is common property, like standard calendars and rulers, are not eligible for copyright.

Click to ExpandDo I have to register my work to copyright it?

No. A work is protected by copyright the minute it is created. Creation involves putting the work into a physical form that someone can see or perceive through using a machine or device. Copies are objects that can be read or seen, from physical books to digital microfilm while phonorecords are recordings such as cassette tapes and CDs. Although authors don’t have to use the © symbol to secure their work it is a good idea and informs others that the work is copyrighted. Authors of visual material can use © (or the word "Copyright" or the abbreviation Copr.), the year of first publication, and the artist’s name. Phonorecords with a sound recording should use "P" in a circle, instead of the ©, the year of the first recording and the copyright owner’s name.

Click to ExpandHow do I register a copyright for my work?

To register a copyright to a work send (1) a completed application form (available at (2) a $30 filing fee for each application (3) a deposit of the work being registered (the application form with specify the deposit requirements) to: Register of Copyrights Copyright Office, Library of Congress 101 Independence Avenue, S.E. Washington, D.C. 20559

Click to ExpandWhat does registration do for me?

One advantage of registering a copyright is it establishes a public record of the copyright claim. That is helpful in court. Authors must register their copyright before suing someone else for infringement on their copyright. If an author registers a copyright within at least five years of publication, the registration establishes prima facie evidence in court that the copyright is valid. Copyright owners may receive statutory damages and attorney’s fees in infringement suits if the author registered the work within three months of publishing the work or prior to an infringement of the work. Otherwise, the court may only award actual damages and profits. Lastly, registration allows the copyright owner to record the registration with the U.S. Customs Service to protect against the importation of copies that infringe on the copyright.

Click to ExpandWho can claim copyright?

The copyright to a work immediately becomes the property of the author of that work.

Click to ExpandHow do I secure a copyright?

A copyright is secured automatically when the work is created. A work is created when it is fixed in a tangible form of expression such as a book, sheet music, CD or cassette tape.

Click to ExpandWhat is protected by copyright? What is not protected by copyright?

Copyright protects original works that are fixed in a tangible form of expression. This includes literary works, musical works, dramatic works, choreographic works, pictorial, graphic, and sculptural works, motion pictures, sound records, and architectural works. Copyright does not protect (1) works that have not been fixed in a tangible form of expression, such as a performance that has not been recorded, (2) titles, names, slogans, common symbols or designs, ideas, or concepts, and (3) works containing no original authorship.

Click to ExpandWhat are my rights as a copyright holder?

As a copyright holder you have the following exclusive rights; (1) the reproduction right, (2) the derivative work right, (3) the distribution right, (4) the performance right, (5) the display right, and (6) the digital transmission performance right - the last four are limited to the public exercise of those rights. The first two are infringed whether done publicly or privately. The Act does not limit an owner’s right to exclude only commercial exploitations. Thus, it is no defense per se that a copy was made for no commercial purpose, or that the performance was done be a nonprofit group. [see Intellectual Property: Patents, Trademarks, and Copyright - In a Nutshell, by Miller, & Davis, © 2000 by West Group, St. Paul, MN. - pg. 323] Important Note: There are many specific limitations on the owner’s rights in particular situations. Any questions regarding these limitations on rights should be referred to a qualified attorney for counsel.

Click to ExpandDoes my copyright translate into the international market?

There are several international agreements that attempt to protect your U.S. copyright in the international marketplace. They are; the Berne Convention, The Uniform Copyright Convention (UCC), North American Free Trade Agreement (NAFTA), and the Trade Related Aspects of Intellectual Property Rights (TRIPS). The most important aspects of these international agreements are that their duration of protection (the number of years one’s work is protected in that foreign jurisdiction) may vary from that of the United States, and the strength of their enforcement measures is often questionable in terms of effectiveness. Essentially, one is left to the devices of the foreign legal system’s rules and procedures for protective action and, remedies may vary from those available in the United States. The bottom line is; copyright protection in the international marketplace is tenuous at best. Enforcement is difficult, and remedies for violations may not be adequate to justify pursuit of claims. [see Intellectual Property: Patents, Trademarks, and Copyright - In a Nutshell, by Miller, & Davis, © 2000 by West Group, St. Paul, MN. - pp. 430-434]

Click to ExpandHow long is a copyright valid?

A copyright generally lasts for the author’s life plus 70 years after the author’s death.

Click to ExpandCan a venue sell my copyright if they sell my work?

Only the owner of a copyright can transfer or sell that copyright. A copyright is not sold when a copy of the work is sold.

Click to ExpandI have an idea...What if I did the work as part of a class, does the school own it?

A university’s policy regarding intellectual property will determine whether the creator of the work or the university owns the copyright or patent to an original work created by a student as a part of a class. Generally, a university will have ownership over any intellectual property created by a student as part of a class assignment.

Click to ExpandWhat if someone hired me to do the work?

Generally, then the employer owns the copyright. The employer owns the copyright if the employee created the work while in the regular scope of his or her job. If an author is working under contract, or as a freelancer, the author should clarify with the employer who will own the copyright before starting the job. Authors who create commissioned works own the copyright, unless 1) the parties expressly state in a signed written agreement that the organization or person commissioning the work owns the copyright and 2) the work fits into one of the following categories: contribution of collective work; part of a motion picture or other audio-visual work; a translation; a supplementary work; a compilation; and instructional test; a test; answers to a test; or an atlas.

Click to ExpandWhat if I did the work for free for someone?

Then the creator likely owns the copyright because a court would likely find the person was not an employee, and therefore not doing work for hire. Work made for hire is either prepared by an employee within the scope of his or her employment, or work that is specially ordered or commissioned and created by an independent contractor. To determine if a person is an employee, the courts weighs these factors: 1) whether the hiring party had the right to control the manner and means of creation, the source of instruments and tools, the skills required and the location of the work; 2) whether the hiring party had the right to assign more projects to the creator; 3)duration of the relationship between the parties; 4) extent of the creator’s discretion over when and how long to work; 5) the method of payment; 6) the creator’s role in hiring and paying assistants; 7) whether the work is party of the regular business of the hiring party; 8) the provision of employment benefits; 9) the tax treatment of the hired party. In once case, an employer did not give a computer programmer employment benefits. That denial weighted in favor of the court finding that the programmer was not an employee and therefore owned the copyright.

Click to ExpandWhat if it was a group effort?

Then the authors of the joint work are co-owners of the copyright of the work, but there are some restrictions. First, the authors have to intend, when they create the work, that they will be joint owners of the copyright. Also, the joint authors have to contribute expressions that can be protected, meaning not just ideas.

Click to ExpandWhen is copying okay?

Copying is ok if the work is in the public domain. If a work is protected by copyright, you must have permission of the copyright owner, who has the exclusive right of reproduction and may license or transfer that right to another party. Another permissible reproduction of copyrighted works is fair use reproduction. Under Federal copyright law, fair use of a copyrighted work includes use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. However, the determination of whether the reproduction of a copyrighted work for such purposes is fair use depends on several subjective factors, and use for one of the listed purposes does not necessarily mean that it is fair use.

Click to ExpandHow do you know if you can use and image, etc.?

You can use a copyrighted work in several instances. If you have permission of the copyright owner to use the work, then you are free to use it in the manner agreed upon. You are also free to use any works in the pubic domain. You can find out if a particular work is in the public domain by searching the records at the Copyright Office or having the Office conducting a search for you. You can also use a copyrighted work if your use constitutes "fair use". Generally, if you are using it for scholarship, commentary, or criticism, you can use a copyrighted work.

Click to ExpandWhat is copyright infringement?

Infringement occurs whenever someone, other than the copyright owner, or a legally recognized assignee of those rights, exercises one of the 6 exclusive rights without specific authorization from the owner or the assignee. Infringement need not be intentional, liability can attach for innocent infringement. [see Intellectual Property: Patents, Trademarks, and Copyright - In a Nutshell, by Miller, & Davis, © 2000 by West Group, St. Paul, MN. - pg. 340]

Click to ExpandHow do I determine if infringement has occurred relative to my copyright?

Determination of copyright infringement is the responsibility of the copyright owner. He must first establish his ownership of the applicable copyright, then he must prove that the infringement is either a direct copy, or that the copy is a “remarkable resemblance” of the original work. This is usually done by showing that the party in violation had both access to the original work, and that the resulting copy is substantially similar to that work - often by use of circumstantial evidence. [see Intellectual Property: Patents, Trademarks, and Copyright - In a Nutshell, by Miller, & Davis, © 2000 by West Group, St. Paul, MN. - pp. 342-343]

Click to ExpandHow do you report copyright infringement?

Limited criminal sanctions are available in copyright cases. If the infringement is willful and includes infringement of works over $1000 in retail value, it is likely a federal crime and you should report such infringement to the local U.S. Attorney’s office. Whether or not criminal sanctions are available, you may bring suit against the infringing party for copyright infringement if you have registered your copyright with the Copyright Office.

Click to ExpandHow can I pursue due course for said infringement?

The best way to pursue a due course of action if an infringement occurs is to contact an experienced intellectual property attorney as this process is very technical and, effective enforcement hinges on the proofs offered in defense of the claim, the timely filing of appropriate legal documents, and vigorous prosecution of the claim.

Click to ExpandIf I give my work as a gift, can my copyright be transferred? Does it need to be transferred?

Ownership of copyright, as with other types of property, may be transferred by gift. You may choose to transfer the entire right or simply assign any of the exclusive rights of reproduction, adaptation, distribution, public performance, or public display. Any transfer you make must be in writing and signed by you, the copyright owner. Although not required to make a valid transfer, you may record the transfer with the Copyright Office.

Click to ExpandIf I bequest my work to a relative, venue, etc...who owns the copyright?

The copyright to a work and the physical work itself are two separate things. You may bequeath the copyright to another person or entity, and the person or entity to whom the bequest is made will own the copyright upon your death. However, simply bequeathing the physical work does not give ownership of the underlying copyright to the named beneficiary.