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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:
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.
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.
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.
While you do not have to register your work in order to receive copyright protection, registration will guarantee you several additional protections including:
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.
Generally speaking, the owner of a copyright has the right to do the following:
To prove a copyright infringement, a copyright owner must establish:
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).
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.
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.
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 or "group registration of unpublished works". 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 the following requirements):
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.
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.
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.
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.
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.
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.
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.
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:
There are a lot of close calls when it comes to fair use and it is a defense to an alleged infringement.
Copyright law defines publication as the public distribution of copies. It can include distribution by electronic transmission, including over the internet.
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.
If your application allows for electronic submission, we will use that functionality. The types of things eligible for electronic submission include:
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.
Several different parts of a song can be copyrighted. The lyrics can be copyrighted separate and apart from the composition. The copyrights can, and often do, belong to different people. The recorded version of a song can also be copyrighted with the rights belonging, at least in part, to the performer who is recording the song. The Trademark Engine can help with one or all of these aspects.