A copyright is a right granted by the government that seeks to promote literary and artistic creativity by protecting, for a limited time, what the U.S. Constitution broadly calls the "writings" of "authors".

Works of authorship can be copyrighted, including the following categories:

· Literary works are works, other than audio visual works, expressed in words, numbers or other verbal or numerical symbols or indica, and include computer programs.

· Musical works including any accompanying words.

· Dramatic works including any accompanying music.

· Pantomimes and choreographic works.

· Pictorial, graphic, and sculptural works.

· Motion pictures and other audiovisual works.

· Sound recordings.

· Architectural works.

The following are examples of works not subject to copyright and applications for registration of such works will not be accepted:

· Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations or typographic ornamentation; lettering or coloring; mere listing of ingredients or contents.

· Ideas, plans, concepts, methods, systems or devices, as distinguished from the particular manner in which they are expressed or described in writing.

· Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information.

· Works consisting entirely of information that is common property containing no original authorship, such as, for example: standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.

The moment a copyrightable work is created and fixed in a tangible form, such as by writing it down or recording it on tape, it automatically enjoys federal copyright protection whether or not it has been published. A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phono record, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a temporary duration.

The individual or joint authors of a work initially own the copyright. In the case of an employer or party commissioning a work, the employer or party is automatically deemed to be the "author" of what is then considered to be a "work made for hire" if either:

· the work was prepared by an employee within the scope of employment; or

· the work was specifically ordered or commissioned, and is one of nine specific types of works, and most importantly, is expressly agreed to be a "work made for hire" in a written instrument signed by both parties.

A "work made for hire" is (i) a work prepared by an employee within the scope of his/her employment; or (ii) a work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, etc.

Yes. "Collective works," "compilations" and "derivative works" are specific types of works, which are based on other types of works or prior works, which are copyrightable. Consult your copyright lawyer about the features of these types of works and how they are protected by copyright.

In general, copyrights created on or after January 1, 1978 start from the work's creation and endures for a term equal to the life of the author plus 70 years.

In the case of anonymous works, pseudonymous works, and works made for hire, the term endures for 95 years from first publication, or 120 years from date of creation, whichever expires first.

The owner of the copyright is given the exclusive right:

· to reproduce the work in copies or phono records of the work;

· to prepare derivative works;

· to distribute copies or phono records of the work to the public;

· to perform the work publicly; and

· to distribute the work publicly.

In essence, copyright law gives the owner the right to prevent copying, performing, or public display of the work. If, however, someone creates a similar work without copying your work, they have a copyright to that similar work and have not violated your rights.

A copyright notice is not required for an unpublished work. However, a statutory copyright notice may be affixed to all publicly distributed copies of a work in a manner and location giving reasonable notice. The copyright notice consists of all three of the following elements:

· the symbol ©, or the word "Copyright" or the abbreviation "Copr."* (except that for phono records of sound recordings, the symbol (P) (a circled letter P) must be used);

· the year of first publication (which may be omitted on greeting cards, postcards, stationery, jewelry, dolls, toys and useful articles). (A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.); and

· the name of the owner of the copyright, or a recognizable abbreviation of the name, or a generally known alternative designation of the owner.

Examples of acceptable markings are:

© 1990 XYZ Industries, Inc.
or
Copyright © 1985, 1987, 1989, 1991
Superfast Software Organization

It is recommended the © symbol be used because it is universally accepted and because the "Corp." marking is only recognized in the U.S. The letter C in parenthesis is not acceptable at all.

A copyright can be registered in any published or unpublished work at any time during the period of copyright by depositing in the Copyright Office two complete copies of the best edition of the work together with an application and a filing fee. The copies accompanying the application satisfy the Library of Congress deposit requirement which must be deposited in the Copyright Office within 3 months of the work being first published with notice in the United States

Copyright law protects only particular expressions of ideas, not the ideas themselves. A protectable work must be "original," i.e., not copied from another source (although two separately protectable works theoretically could be identical by coincidence). The work also must not be so elementary that it lacks sufficient creativity to be copyrightable. Excluded from copyright protection for an original work of authorship is "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in the work".

The test of infringement of a copyright is: i) direct proof of copying by the defendant; or ii) proof of access and substantial similarity from the viewpoint of an ordinary observer, after which the burden of proving independent creation shifts to the alleged infringer.

Some of the many specified activities not considered copyright infringements by the federal law include:

· the use of the basic idea expressed in the work. (This is not necessarily true, in fact, in the case of computer user interfaces. Computer user interfaces are the features with which a user interacts to operate a computer, i.e., icons, touch screen display, etc.);

· the independent creation of an identical work without copying;

· the sale or limited public display of a work by the owner of the physical copy or phono record;

· "fair use" of the work for purposes such as criticism, comment, news reporting, teaching, scholarship or research; and

· use under one of various categories of "compulsory licenses".
The computer software area poses certain challenges, because some cases in the past appear to have gone beyond protection of expression, approaching protection of function.

· the right to certain evidentiary presumptions (e.g., once a copyright is registered, it is presumed to be entitled to copyright protection which shifts the burden of proof to the infringer to demonstrate why the work is not entitled to such protection);

· the right to certain remedies including statutory damages and attorneys fees for any infringement of the work if filed within certain time periods;

· the right to record the certificate of registration with the U.S. Customs Service to protect against the importation of infringing works.

A copyright must be registered before you can sue for infringement. A registered copyright entitles the plaintiff to obtain an injunction and to recover either plaintiff's actual damages, plus any profits of defendant not taken into account in computing plaintiff's actual damages, or damages specified in the statute for all infringements involved in the action, with respect to any one work, and attorneys fees, the latter depending on when it was registered.