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Copyright 101

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Just what is a copyright?

Copyrights protect “original works of authorship fixed in any tangible medium of expression.” Examples of copyrightable works are books, musical compositions, movies, computer programs, and Web sites.

Copyrights do not cover ideas. Rather, it is the expression of an idea in the author’s unique way that is protectable. Ideas are protected by patents and trade secrets.

This idea/expression dichotomy is at the heart of copyright law. An example to illustrate what it means is that the idea of a word processor software program is not protectable by copyright. Instead, copyright covers the precise expression of the word processor software program in its software code. Consequently, many different word processing software programs can be protected by copyright.

Copyright rights

The owner of a copyright possesses the exclusive rights:

*to make copies of the work;

*to prepare “derivative” works based on the original work;

*to sell copies of the work to the public; and

*to display or perform the work publicly.

Violation of any of a copyright owner’s exclusive rights constitutes copyright infringement.

When you can use another’s work without permission

Fair use of another’s work includes using the material for criticism, comment, news reporting, teaching or research.

To determine whether a particular use qualifies as a “fair use,” the following four factors are analyzed:

*the nature of the use (commercial or not-for-profit);

*the nature of the work (whether highly creative or very factual);

*the amount and substantiality taken from the copyrighted work; and

*the effect on the commercial market for the copyrighted work.

A finding of “fair use” means the use is immune to a claim of copyright infringement and its attendant damages.

Who owns the copyright?

The rights of a copyright belong to the “author or authors” of the work. But, when an employee “authors” a copyrightable work, her employer owns the copyright.

An extremely important exception to the employer-ownership rule is that “contractors” or “consultants,” as distinct from “employees,” own the copyright in works they create for others, even if they have been paid for the work, unless a written copyright assignment is signed.

Copyright damages

Copyright damages are immensely useful both for compensation and as a tool to rapidly stop, or to deter in the first instance, an infringement. A copyright infringer is liable for either: (1) the copyright owner’s actual damages and any additional profits of the infringer, or (2) “statutory” damages.

Statutory damages need not be proven -- the court awards them in its discretion. The major limitation on statutory damages is that they are available only for infringements that began after the copyright owner registered the copyright with the U.S. Copyright Office.

Statutory damages of up to $150,000 per infringement can be awarded by the court. The threat of such draconian damages can be used very effectively to stop, and to deter, infringement of copyright works.

Submitted by Jacob C. Reinbolt for Procopio, Cory, Hargreaves & Savitch LLP

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