Slater Legal PLLC is skilled copyright counsel with a focus on visual arts, music, written works, and software.
Did you hire a contractor to build software or design a logo or website but didn’t commit anything to writing? Are you about to sign your first book or record deal? Have you seen your work on someone else’s publication, website, or social media feed? Here are a few things you should know about what is copyrightable, who owns a copyrighted work, and how to protect your work.
What is a copyrightable work?
Copyright law in the United States derives from Article 1, Section 8, Clause 8 of the U.S. Constitution, providing Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Congress codified copyright law in Title 17 of the U.S. Code. Under 17 U.S.C. § 102, a copyrightable work is an original work of authorship which is fixed in a tangible medium of expression. Examples include:
- Literary works
- Music works
- Dramatic works
- Choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
Categories of copyrightable works are viewed broadly. For instance copyrightable software is considered a “literary work.”
What isn’t copyrightable?
Just because you create something, doesn’t necessarily mean it is capable of copyright protection. For instance, HTML that is not human-generated is not copyrightable as courts do not recognize computers as “authors” under the Copyright Act. The law also precludes copyright protection for:
- Ideas, processes, methods, systems
- Titles, names, short phrases (in some cases, these can be protected as trademarks)
- Facts and news
- Works in the public domain
- Unfixed works (like a contemporaneous, unrecorded speech)
- Mechanical/utilitarian aspects of useful articles
- Government works (17 U.S.C. §105)
- Government edicts
Whether something is capable of copyright protection can be nuanced. Speak to experienced copyright counsel to help you determine whether your work, or someone else’s work that you wish to use or remix, is protectable.
Who owns a copyrighted work?
A person who creates a work (like a logo, blog post, or software code), is usually the author of that work for purposes of initial copyright ownership. See 17 U.S.C. § 201(a) (the Copyright Act provides that copyright ownership “vests initially in the author or authors of the work”). There is an exception for employees and contractors under the Copyright Act of 1976 called the “work for hire” doctrine. See 17 U.S.C. § 201(b).
Works for hire
Section 101 of the Copyright Act (17 U.S.C. § 101) defines a “work made for hire” in two parts:
- works prepared by an employee within the scope of their employment, or
- a work specially ordered or commissioned for use as a part of a collective work, motion picture or other audiovisual work, translation, supplementary work, etc., but only if the parties agree in writing that the commissioned work will be considered a “work for hire.”
For specially commissioned works, courts have found retroactive attempts to make a “work for hire” void.
Under the doctrine, the employer or company that has hired the contractor will be the “author” for purposes of copyright law. This is important because it can affect termination rights—an author can terminate a license grant or assignment of rights after a certain period of time under the statute, but the creator of a “work for hire” cannot recover those rights.
Transfer of rights
Copyright owners have, under 17 U.S.C. § 106, the exclusive right to:
- Reproduce the work in copies;
- Create derivative works based upon the work;
- Distribute copies of the work;
- Perform the work publicly;
- Display the work publicly; and
- Digitally transmit sound recordings.
Owners can transfer some or all of these exclusive rights by license or assignment.
Protecting and registering your works
Copyright protection vests at moment of creation and lasts for the life of the author plus 70 years for individuals and the lesser of 95 years from publication or 120 years from creation for entities. You don’t need to sign or register anything to have a copyright in a work—once you draw or write the work, you own the copyright in it. There are a few things you should do to maximize your protection and ability to recover in the event of infringement.
U.S. law no longer requires the use of a copyright notice (like © 2022 Slater Legal PLLC) for works published after March 1, 1989, but there are benefits for doing so. Use of a copyright notice puts the world on notice that your work is protected by copyright. If your work is infringed while carrying a copyright notice, the infringer may not be able to demonstrate an innocent infringement defense to reduce damages. For cases where your copyright notice is removed on infringement, you can seek additional recovery under the Digital Millennium Copyright Act of 1998 (DMCA).
A license to sue?
For works created and first published in the United States, registration with the U.S. Copyright Office is a requirement for protecting your copyrights in federal court under Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 885 (2019) (“[r]egistration is akin to an administrative exhaustion requirement that the owner must satisfy before suing to enforce ownership right”). In the new small claims process under the CASE Act of 2020, an application to register the works must be filed before you can initiate the small claims case, but registration itself is not required.
Copyright registration has its benefits. Registration within 5 years of publication provides prima facie evidence of copyright validity and the facts stated in the registration certificate. Registration before copyright infringement commences or within 3 months of publication permits the copyright owner to seek statutory damages and attorney’s fees under 17 U.S.C. § 412.
For foreign works subject to the Berne Convention, registration with the U.S. Copyright Office is not required before filing a lawsuit in the United States. The burden is on the copyright owner to prove that publication occurred abroad to avoid copyright registration. See Kernel Recs. Oy v. Mosley, 694 F.3d 1294, 1304 (11th Cir. 2012). Owners of foreign copyrights should consider registering their works in the United States to receive the benefits of registration.
Reach out to our copyright lawyer at Slater Legal PLLC today to learn more about our copyright counseling, registration, and dispute resolution services.