IP Basics
In my last IP Basics post, I discussed the 4 types of IP rights in the US legal system: copyrights, trademarks and trade dress, trade secrets, and patents. In this post, I’ll dive into copyrights and describe how works are evaluated for copyright protection and exclusive rights for owners.
Copyrights protect original works of authorship that are fixed in a tangible medium, such as painting on a canvas, or a novel typed in a word processor and saved in non-volatile memory (such as your hard drive or on the cloud). Original expressions of an idea are protected, meaning they incorporate sufficient creativity and are independently created by a human. Works that can be copyrighted are: literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Software and certain compilations can be registered as “literary” works.
However, ideas, facts, names, titles, short phrases, or most typefaces cannot be copyrighted. Some of these, such as titles, short phrases, and typeface, may be protected by other IP laws, such as trademark, while ideas may be protected by patents, subject to additional requirements. Additionally, works that cannot be fixed, such as writing on a foggy mirror, cannot be copyrighted, because they are not set on a permanent medium that can be viewed later.
Except for works made for hire, the author who created the work is the copyright owner. For works made for hire, the individual or business that hired the creator of the work is considered the author and copyright owner.
Copyright owners have certain exclusive rights in their works: to reproduce or make copies, to prepare derivative works, and to distribute copies to the public by selling or renting, leasing or lending. For literary, musical, dramatic, choreographic works, pantomimes, motion pictures and other audiovisual works (such as movies), additional rights include public performance of the work and public display of it. And for sound recordings only, there is the additional right to publicly perform the work by means of a digital audio transmission, such as broadcasting over a radio.
Because only the copyright owner has these rights to the work, they can choose to retain those rights or license or sell those rights via contract to other individuals or businesses. A violation of a copyright owner’s exclusive rights – reproduction, distribution, public performance, public display – can be grounds for a copyright infringement lawsuit.
When it comes to software, if someone needs to install the software on their computer, they will need a license to make a copy of that software so that they can access and use it. However, for SaaS products, the user isn’t actually installing the software on their computer; they are accessing it from a cloud-based service. This means that the user doesn’t need a software license; they simply need permission to access and use.
The duration of copyright protection depends on when the work was made. Because the Copyright Act became effective on January 1, 1978, works created before or after that date have different copyright duration. For this post, I’ll only discuss works created on or after January 1, 1978.
Copyright protection begins once the work is fixed in a tangible medium and runs for the life of the author + 70 years after the author’s death, ending at the end of the calendar year. For works created by joint authors, the term ends 70 years after the last author’s death.
For works made for hire and anonymous and pseudonymous works, protection runs for the lifetime of the author + 95 years from first publication, or 120 years from creation, whichever is shorter.
In my next post, I’ll discuss the benefits of copyright registration, copyright infringement claims generally, and fair use as a defense. Stay tuned!
