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Copyright Law

By Alan M. Briskin, J.D.

Copyright is a form of legal protection provided by statutes of the U.S. government and is granted to authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. In addition to published works, unpublished works are also subject to protection, regardless of the nationality or domicile of the author. This protection exists from the time the work is created in fixed form – that is, in any tangible medium of expression, now known or later developed, from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. A copyright in a work of authorship ordinarily immediately becomes the property of the author who created it, and only he or she or those deriving their rights through him or her can rightfully claim copyright; however, this is not true for an employee who was hired to create the work.

The general rule is that a person who creates a “work” is the author of the work, and therefore, the copyright owner; however, an exception exists in the case of a “work made for hire.” Basically, if a work is created by an employee within the scope of his or her employment, the employer is considered the author of the work, and thus, is the copyright owner of that work. The work of an independent contractor will be considered a work made for hire under the Copyright Act if the work is requested, ordered or commissioned and falls within certain categories of the works listed in the Act. Consequently, if the author of the work is considered an independent contractor, and the work does not fall into one of the categories listed in the Act, the company paying the author will not be considered the copyright owner unless it has the independent contractor assign or transfer rights of his or her copyright to the company. In addition, there is substantial case law regarding the differences between when someone is considered an employee or an independent contractor. Usually, the determining factors involve the specific issues present on a case-by-case basis.

Copyright law tends to strongly favor the rights of authors and deemphasize the rights of publishers. In the past, prepublication protection was referred to as common law copyright. For this protection, no legal formalities had to be observed so long as the work remained unpublished. Previously, a copyright was obtained in two ways: one, by publication of the work with a proper notice of copyright, and two, by registration of certain works (such as lectures, dramatic and musical compositions, motion pictures, works of art) before publication. On such publication or registration, the common law copyright terminated. For this reason, U.S. copyright law had been referred to as “a right of first publication,” and the question of whether a particular work had been published was often a major consideration. Now this cumbersome and confusingly dual system of protection is replaced by a single federal system of statutory protection for all copyrightable works, both published and unpublished.

Although work receives legal protection when fixed in a tangible form, it is still desirable and recommended to register the work with the Copyright Office. First, registering it enters the work into public record, which provides additional proof as to authorship of the work. Second, once the work is registered, the copyright owner has the right to file suit against an infringer and collect statutory damages. In most situations, it is not possible to collect statutory damages or attorney’s fees for infringements that began prior to the registration of work. Statutory damages are damages that the court may award instead of actual damages based on the direct evidence of damages that are shown to the court. This gives the court an additional option, to the benefit of the copyright owner. Keep in mind, however, that if infringement does take place, it is still an option to then file the application for registration, and the other party is liable for actual damages that can be proven. In addition, the other party may also be liable for realized profits. Furthermore, at its discretion, the court may allow the recovery of full costs by or against any party other than the United States or an officer thereof, including reasonable attorney’s fees to the prevailing party as part of the costs.

As such, copyright law provides individuals and companies with the right to demand payment from others for the use of said copyrighted materials. Naturally, the actual monetary value of these rights hinges on the demand for granting permission to use a work protected by copyright law. A recent court case provides yet another example of the benefit of registering one’s work with the Copyright Office. In the suit, captioned In re Literary Works in Electronic Databases Copyright Litigation, a group of freelance writers alleged that certain electronic databases and print publications violated their copyrights in the electronically reproduced works. For years, it was industry practice for freelance authors to sell their works to publications without the existence of a written contract. Ordinarily, for a fee paid to the author, permission would be granted for a first right to publish the work in a specific portion of the newspaper or magazine. In the 1980s and early 1990s, upon the existence of the large electronic databases, it was industry practice for print publishers to enter into licensing agreements authorizing electronic database owners to copy and sell the first text of the publications, including the articles written by these freelance contributors, authors and writers. These print publications customarily did not obtain the express written permission of the freelance authors for the later publication of their works in these electronic databases.

It appears as though the lawsuit will be resolved shortly. A federal judge has just granted preliminary approval of an eighteen million dollar settlement in the class action lawsuit on behalf of the freelance writers. Under the terms of the proposed settlement, major publishing houses (such as Time, Inc., The Wall Street Journal and The New York Times) and database companies (such as Lexis-Nexis and West Group) agreed to pay writers a lump sum of up to $1,500 for stories in which the writers had previously registered for copyright protection. The writers who failed to register their “copyrightable” works will only receive an amount of up to $60 per article. Had these writers registered their works, they may have received an additional $1,440.00 for each article, which demonstrates yet another reason for registration of written works.