This chapter provides a general overview of two distinct areas of intellectual property law: copyrights and trademarks. Copyrights provide important protection for original works of authorship, and trademarks allow owners to distinguish their products and services from others'.
A copyright is a form of federal protection used to safeguard "original works of authorship" that are "fixed" in a tangible form of expression.1 The protection of copyright can extend to literary, dramatic, musical, and artistic works, as well as to software, brochures, labels, and catalogs.2 To qualify for copyright protection, a work must be original and must be fixed in a tangible medium. A copyright cannot protect an idea, only the expression of an idea.Copyright Protection, Notice, and Registration
Copyright protection exists from the time a work is created and put into a tangible fixed medium. No publication, notice, registration, or other action in the US Copyright Office is required to secure copyright rights. Nevertheless, registration is necessary to file a lawsuit for copyright infringement, and registration prior to infringement is necessary to recover statutory damages and attorneys' fees in any such action. 3
In general, a copyright notice consists of the word or symbol "Copyright," "Copr.," or "©" followed by the date of publication and the name of the copyright holder. Use of a copyright notice is optional for works created after March 1, 1989. Notice is highly recommended, however, because it: (1) informs the public that the work is protected by copyright, (2) identifies the copyright owner, (3) shows the first year of publication, (4) eliminates the defense of innocent infringement in a suit for copyright infringement, and (5) allows the owner to register the work with the US Customs Service for protection against the importation of infringing copies.
To register a copyright, 4 one must send the following items to the US Copyright Office: (1) a properly completed application form, (2) a nonrefundable filing fee, and (3) two nonreturnable copies of the work being registered.5
Protection for a copyrighted work created after 1978 extends for the life of the author plus 70 years. Protection for works made for hire, e.g., a work prepared by an employee in the scope of his or her employment, or a work ordered or commissioned and designated in writing as a work made for hire — in which case the copyright is owned by the employer/commissioner, not the employee, and for anonymous or pseudonymous works lasts for 120 years or 95 years after publication, whichever comes first. For works created prior to 1978, the rules are complex. In general, protection for such works lasts for 95 years, but there are exceptions that could result in the copyright expiring sooner. After expiration of the term of protection, the work enters the public domain and is no longer entitled to protection.
What Does Copyright Protection Entail?
Copyright protection includes the following six exclusive rights: the right to (1) reproduce the work, (2) prepare derivative works based upon the work, (3) distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending, (4) perform the work publicly, (5) display the work publicly, and (6) in the case of sound recordings, perform the work publicly by means of digital audio transmissions.
To assert a successful claim for copyright infringement, the copyright owner must demonstrate (1) ownership of the copyright, and (2) copying of protectable elements of the work. Copying is often demonstrated by proof of access to the work and "substantial similarity." If a copyright owner succeeds on a claim for infringement, he or she is entitled to either statutory damages (assuming the copyright was registered prior to the infringement),6 or actual damages plus the infringer's direct and indirect profits.7