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What Can I Copyright?

Usually, determining whether something can be copyrighted is easy. Books, movies, and songs are copyrightable. Artistic drawings, paintings and photographs are also copyrightable. When you start moving towards more technical works and drawings, it can become a little trickier. Generally speaking, drawings, photographs, and other two-dimensional and three-dimensional expressions that visually depict three-dimensional objects are copyrightable. At the Trademark Engine, we can help you copyright your:

  • Written work such as fiction, nonfiction, poetry, textbooks, reference works or articles
  • Directories or catalogs, advertising copy
  • Computer programs
  • Website or online materials
  • Photograph
  • Art Work
  • Maps
  • Technical Drawings
  • Recorded performance of music or sound
  • Written music & Lyrics, Screenplay or script
  • A Choreographic work
  • A recorded score for a movie or play
  • Feature film, documentary film, animated film, television show, video, or other Audi-Visual Work

What don’t we copyright here on the Trademark Engine?

Because the U.S Copyright Office does not allow electronic filing, we do not offer services at this time to help you copyright your: (1) Group of Serial Issues; (2) Group of Newspaper Issues; or (3) Group of Newsletter Issues.

What’s the difference between copyright, patent and trademark?

A trademark protects a word, phrase, symbol and/or design that distinguishes the source of the goods. These are brand marks that give a particular product or service a distinct identity or help consumers distinguish between various products or services.  To learn more about trademarks, go to our FAQ’s on trademarks. Copyright, on the other hand, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. A patent protects “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” usually consisting of inventions, including their functionality or design.

A patent gives the owner the exclusive right to manufacture products or employ processes covered by the patent for 20 years from the earliest priority date. A trademark, if properly maintained, can last forever. A copyright generally lasts for 70 years plus the life of the author as explained below.

What is a common law copyright?

The law in the United States provides that you are granted a copyright in your work the minute you create it regardless of whether you register your work. Assuming your work is original and has a basic amount of creativity, you may claim ownership and protection. The problem is without registering, you have an incomplete form of protection in that you cannot enforce your rights in a court of law in America.

What are the benefits to registering your work with the copyright office?

While you do not have to register your work in order to receive copyright protection, registration will guarantee you several additional protections including:

  • The ability to file a lawsuit: If your work is not registered with the copyright office, you cannot file suit for copyright infringement.
  • Statutory damages: If not timely filed, you cannot sue for statutory damages. You would therefore have to prove that someone’s copying of your work caused you actual damages that you can calculate and tie to the infringement of the other person. (more on this below)
  • Protection from imported infringing copies: Registration also allows you to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
  • Firm claim of ownership: Registration makes it more difficult for infringers to argue that they were unaware of their infringement as it acts as a notice to everyone that you own the copyright.
  • Image of Establishment: In some industries (such as film scripts), registration of copyright is a prerequisite to get some people (like agents) to take you seriously.

What are statutory damages?

If you timely file your copyright, U.S. law allows you to recover statutory damages. Sometimes, it is difficult to directly tie the infringement of your work to a lost profit and therefore, you may want to seek statutory damages instead. Other times, the actual damage caused by the infringement is small, but statutory damages make the pursuit of a lawsuit more economically viable.

In the U.S., statutory damages range between $750 and $30,000 per infringed work in the discretion of the judge. If you can show “willful” infringement by the defendant, then you may be able to recover up to $150,000 per work. Meanwhile, if the defendant can prove they are an “innocent infringer”, then the court may reduce the statutory damage to as low as $200 per work.

To be able to recover statutory damages, you have to register your work with the U.S. Copyright Office prior to infringement or within three months of publication.

What rights come with a copyright?

Generally speaking, the owner of a copyright has the right to do the following:

  • Reproduce copies of the work
  • Prepare derivative works
  • Distribute copies
  • Perform the work publicly either in person or recorded
  • Display the work publicly

What is copyright infringement?

To prove a copyright infringement, a copyright owner must establish:

  • The ownership of a valid copyright
  • Factual copying: Factual copying can by proved by direct or circumstantial evidence. To make a circumstantial claim, the copyright owner must prove that (1) the infringer had access to the copyrighted work before creation of the infringing work and (2) the works contain similarities that are probative of copying.
  • Substantial similarity: The copyright owner must show that the copyrighted expressions in the two works are sufficiently alike that the copyright to the original work has been infringed.

How long does a copyright last?

In most cases, a copyright lasts for the life of the author plus 70 years. If the author of the work died in 2070, then the copyright, in most situations, would last until 2140. For works made for hire, and for anonymous and pseudonymous works, the duration of copyright is 95 years from publication or 120 years from creation (whichever is shorter).

I’ve heard I cannot copy a technical drawing because it is a “useful article.” What does that mean?

Copyright law may extend to a drawing or design, but not to the actual three-dimensional product depicted in that design. In other words, you may be able to copyright a drawing of a chair, but generally speaking, copyright law would not allow you to keep people from making copies of the actual chair. The chair is what is referred to as a “useful article” and is not the subject of copyright law.

What is a compilation?

Copyright law defines a compilation as a “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”  In other words, it could be a unique way a collection of previously produced stories or songs is arranged in a video, or a group of essays compiled together by several writers to be sold as a single book.

I have a number of works that all go together. Does each work need to be independently registered or can I file one copyright for all of them?

Sometimes, you can register a number of works in a single application that protects each individual work, as part of what copyright law calls a collection. This traditionally applies to albums, collections of essays or articles, or collections of photographs all created by the same person. You can file a copyright registration for a “collection” if (you meet all or one requirement?):

  1. The elements are assembled in an orderly form
  2. The combined elements bear a single title identifying the collection as a whole
  3. You are both the author of the individual elements and the collection as a whole
  4. All of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element.

What is the “author”? Am I the author or my company? What is a work made for hire?

As part of the copyright application process, you will have to identify the “author” of the work. The “author” is the person responsible for the creation of the work, and the copyright in the work immediately becomes the property of the author. That is easy to figure out when one person created it and is responsible for it, as is the case most of the time. When there is employment or a payment for someone else to create something, it can get a little more complicated.

Copyright law recognizes something referred to as a “work made for hire.” Just because you pay for someone to create a drawing, computer program or design a website, does not mean you own the copyright to it. To own the work done by someone else, it must be a work for hire which means that it was created by an employee in the course and scope of their employment. This simply means that they created the work as part of their job and it was part of their duties to create these types of things. This would cover the programmer working for Google or the illustrator working for Pixar.

But what about contractors? When using outside contractors to create things, it usually requires a written contract assigning the copyright or intellectual property rights to the person paying for the creation for the person paying to own the copyright.

More specifically, Section 101 of the Copyright Act defines a “work made for hire” as: (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

How do I copyright my website and why should I?

The content, code and design elements of a website can be copyrighted. You will submit a printed out version of your site and the copyright protection will apply to the version submitted. Because websites are frequently updated, you may want to submit your revised version of your website, too. Registration of a revised version covers only the new or revised material added.

What level of creativity is required?

To be eligible for a copyright, there is a minimal amount of creativity in the work necessary. The hurdle, however, is not high. The best way to demonstrate is to discuss the U.S. Supreme Court case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). In that case, the Supreme Court said that information alone, such as phone numbers and addresses arranged in alphabetical order alone, do not meet the necessary level of creativity. Likewise, listing of ingredients in a recipe do not qualify; nor do short phrases which are more likely to be protected by trademark. Raw data and facts are not copyrightable, but if you arrange them and describe them in an original way, your work may be protected.

Can I copyright my database?

Databases may be subject to copyright protection if the “automated database” requires effort and creativity to compile the data. If you re-compile publicly-available data and arrange it in a different way to discuss a trend or other original concept, your work will be protected. The underlying publicly-available data, however, may not be protected.

Will my copyright become public record?

Your copyright application is a public record including the identity of the author of the work.

Can I file my trademark under my pseudonym or artistic name?

Yes. The author of the work can use a pen name, pseudonym or artistic name. You can file it so only the pseudonym appears in the record or you can have it where both are available to the public. While available, filing under a pseudonym may make it harder for you to license your work or enforce it because you will have to prove that you are the person behind the pseudonym. A work filed under a pseudonym enjoys protections that is either the earlier of 95 years from the publication of the work or 120 years from its creation, whichever is shorter. Meanwhile, if the author is identified, then copyright protection lasts for the life of the author plus 70 years.

Am I allowed to make redactions to my copyrighted work to keep others from seeing the “secret” part of it?

Wanting to copyright something and wanting to keep it secret are usually two concepts at odds with each other since filing a copyright makes it a public record and is often done because you want to copy, distribute and display something publicly. However, the Copyright Office allows for the redaction of sensitive and trade secret information in documents filed with the Copyright Office. The practice is most common in computer programs when there is a sensitive algorithm or command implemented in your software.

What are derivative works and do I need to refile every time I make a change to my work?

One of the rights that belong to the holder of a copyright is the right to make a “derivative” work. A derivative work is a new product that contains aspects of a preexisting already copyrighted work. Sequels, remixes, subsequent works in a series may all be considered derivative works. The line between a derivative use and a fair use or parody of a work is not always easy to distinguish.

If you only make slight changes to your own work, it may be considered a derivative work and not one that is subject to receiving its own copyright. On the other hand, if you are using some aspect of another’s work, it needs to be different enough so that it won’t be considered a derivative work which belongs to the original creator. When you talk about “fan fiction” and other works that rely in part on pre-developed characters and story lines, it can get quite blurry and you may need to consult an attorney. Unfortunately, there is no bright line test to determine whether a work is a new creation or a derivative work that belongs to the original author.

Can I copyright my computer software code?

Copyright law protects your software code, but not the general idea of what your software does. In other words, it can protect the exact code that allows your program to do geo-location, or do complex calculations or whatever it is. Copyright law, however, does not protect the general idea of geo-location or calculations. To properly file, you may either need to provide a printout of the first 25 pages and last 25 pages of the readable code. It may also be possible to upload your sources code electronically. Our copyright team will help you complete the process.

Does my copyright filed with the Copyright Office protect me internationally?

Through international agreements, many countries will respect your copyright when filed through the U.S. Copyright. For a listing of countries and what rights apply, check out Circular 38a, from the U.S. Copyright Office.

What remedies are available to me if I sue for copyright infringement?

A copyright owner is entitled to statutory fees and attorneys’ fees along with actual damages caused by the infringement. Actual damages may include lost profits and “reasonable royalty rates,” or what a willing buyer would have been reasonably required to pay a willing seller as a licensing fee for the actual use of the copyrighted material by the infringers. A copyright owner may also seek “any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” Additionally, a copyright owner may be entitled to an injunction to prevent the infringer from copying or selling the infringing materials.

When do I need to register my copyright?

You can file at any time after you complete your work. However, there are certain advantages to timely registering your copyright in a timely fashion. If you register before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate. If you register your work within three months after the publication or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner. In other words, if you wait until there is an infringement to register your work so you can have access to the courts, you may lose the valuable right to seek the recovery of statutory damages and attorneys’ fees.

What is fair use?

The Fair Use Doctrine allows you to use the copyrighted work of others in limited circumstances. Unfortunately, fair use is not an easy doctrine to understand or determine. If anyone has ever told you that as long you use no more than 20% of someone else’s work, or some other alleged bright line test, they are wrong. Instead, fair use is a factually-specific inquiry and there is no bright line test. Courts consider these four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

There are a lot of close calls when it comes to fair use and it is a defense to an alleged infringement.

What is meant by publication?

Copyright law defines publication as the public distribution of copies. It can include distribution by electronic transmission, including over the internet.

What happens after my registration is filed?

The U.S. Copyright Office receives over 600,000 applications per year. It is taking at least nine months for the Copyright Office to review applications at this time. You can expect a letter, telephone call or email from a Copyright Office staff member if further information is needed.

How do I submit my work to the U.S. Copyright Office?

If your application allows for electronic submission, we will use that functionality. The types of things eligible for electronic submission include:

  • Unpublished works
  • Work published only electronically
  • Published work for which the deposit requirement is identifying material (this usually applies to descriptions of three dimensional works and would include pictures of the work or similar two-dimensional reproductions or renderings of the work)
  • Published work for which there are special agreements requiring a hard-copy deposit to be sent separately to the Library of Congress

For works where a hard-copy is required, you will be provided a mailing label to affix to your package and mailing instructions from us. NOTE THAT YOU WILL NOT GET BACK THE SUBMISSIONS YOU PROVIDE TO THE U.S. COPYRIGHT OFFICE.