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Copyrights

Your online content is at serious risk. Did you know that:

  • Content created for your business is subject to copyright protection whether or not it is registered with the United States Copyright Office?
  • By just copying and pasting or by right-clicking and saving, the copyrighted work a company spent years developing (such as photographs, web site code, images, and other content) can be misappropriated in seconds?  Often times, with photographs, graphics and text, misappropriated content reappears on other websites within seconds.
  • When online content is stolen, there are immediate actions a business can take to help ensure copyrighted information is immediately taken off the offending website without resorting to litigation?

A business’ intellectual property is oftentimes its most valuable and vulnerable asset making copyright law especially daunting for many practitioners.  On top of that, the largely unknown area of the Internet complicates matters.  Hiring a law firm that has experience with these complicated issues is of the utmost importance.

Centre’s Capabilities and Experience

Centre’s attorneys have experience protecting copyrights and defending those accused of violating them.  For example, Centre’s attorneys have:

  • Represented companies in multi-million dollar federal litigations in which companies were accused of violating copyrights on websites;
  • Served take-down notices pursuant to the Digital Millennium Copyright Act and successfully had copyrighted materials taken down within hours;
  • Represented companies in multi-million dollar federal litigations in which companies were accused of violating copyrighted product packaging;
  • Defended companies accused of stealing web site code; and
  • Defended companies accused of misappropriating online copyrighted videos and music.

Contact Eric S. Crusius, Esq. (ecrusius@centreconsult.com or 703-288-2800) for more information about what Centre’s Internet Law and New Media practice can do for you.

Read more about Copyright law and Internet law on Centre’s Internet law blog.

Information Centre: The Interface of Internet Law and Copyright Law

What is a copyright?

Copyright law protects works of authorship.  Copyrights provide protection in “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or a device.”   17 U.S.C. §102(a).

For example:

  • Literary works;
  • Computer software;
  • Compilations and arrangements;
  • Pictorial, graphic and sculptural works;
  • Sound recordings;
  • Motions picture and other audiovisual works; and
  • Musical works.

Copyrights on the Internet

In essence, the Internet is largely composed of copyrighted work.  The code underlying most websites, the text, graphics, and images, and even the look and feel of websites can be copyrighted.  Because of the ready availability of the copyrighted work and the technical underpinnings of the Internet, Courts have struggled with enforcing copyrights on the Internet.

One unique solution is the Digital Millennium Copyright Act (“DMCA”).  Enacted in 1998, the DMCA gives copyright holders a relatively quick and inexpensive way to enforce their copyrights and take down infringing works.

If your copyright was violated on the Internet, we can help you exploit the unique tools offered by the DMCA and federal statutes.  Conversely, if you have been accused of violating someone else’s copyright, we can represent you.

What are the Legal Requirements for Protection?

Originality and Creativity: the work must be “original” –i.e. result of the author’s intellectual endeavor that exhibits a minimal amount of intellectual creativity.  The standard for original authorship, however, is generally extremely low.

Expression in a Tangible Medium: Protected work must be presented in a physical form (paper, recording, magnetic disk, etc.).  If the work cannot be expressed in a physical or machine readable form then it is an unprotected idea.

What Rights are Conferred by Copyright Protection?

The Right to Use: the right to restrict and direct the use of the protected work is the hallmark of copyright protection.   Only the copyright owner is permitted to authorize or license third parties to use or possess the work.  Persons possessing the protected work without the authorization or permission of the copyright owner may be enjoined from use or distribution of the protected work.

  • The right to perform or display the work publicly.
  • The right to distribute copies of the work for sale or rental.
  • The right to reproduce copies of the work.
  • The right to license.

The Right to Create Derivative Works: Another major right conferred on a copyright owner is the exclusive right to prepare a derivative work from the protected work.  A derivative work is defined as a “[w]ork based upon one or more preexisting works such as a translation … motion picture version  … or any other form is which a work may be recast, transformed or adopted.  A work consisting of … elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ‘derivative work.’  17 U.S.C. §101.

When Does Copyright Protection Accrue?

Protection Begins at Creation of the Work.  An original work becomes subject to copyright protection as soon as it is “fixed in the tangible medium” and can be perceived, reproduced or otherwise communicated.   No further action is required to secure the copyright.

Use of a Copyright Notice Is Not Required But is Recommended.  A copyright notice is not required to secure a copyright, but it is desirable to communicate to third parties that the work is subject to copyright.  Absent such notice, third parties may argue that they believed in good faith that the work was in the public domain.

Effective copyright notices contain four elements:

  • The copyright symbol “©”, the word “Copyright” or the abbreviation “Copr.”
  • The year of publication of the work.
  • The name of the copyright owner.
  • The phrase “All Rights Reserved.”

Registration Confers Additional Rights.  Copyrights may, but are not required to be, registered with the United States Copyright Office.  Registration, however, enables the copyright owner to recover statutory damages up to $100,000 for infringements of the copyright that occur after the registration.

Duration of Copyrights

Natural Persons as Creators:  If the work was created by a single author, the term of the copyright is the life of the author plus 70 years.  If the work was created by multiple authors, the term of the copyright is life span of the last surviving author plus 70 years.

Others:  If the work was created on behalf of an employer as a “work for hire,” the term of the copyright is the lesser of 95 years from the date of publication or 120 years from the date of creation.

Copyright Infringement Litigation

Centre’s attorneys have experience representing parties in federal copyright litigations for online and offline works.  For those accused of violating another’s copyright, the punishment is real:

  • Criminal Penalties:  For willful violations of copyrights, federal law authorizes fines and/or imprisonment.
  • Civil Remedies: the following civil remedies are available for infringement:

°           Actual damages.

°           Statutory damages (up to $100,000) if the copyrighted work was registered.

°           Injunctive relief to enjoin continuation of the infringement.

°           Impoundment of unauthorized copies of the copyrighted work.

Special Issues Affecting Copyrights

  • The “Work for Hire” Doctrine:  Typically, copyright ownership vests in the creator or author of a work.  An exception to this rule arises, however, when the work is commissioned by a third party or is created by an employee while performing work within the scope of the employment relationship.  A commissioned work is one in which the parties have entered into an enforceable agreement that the copyright to the work will be owned by the non-creating party.  Works created in response to a commission or by employees performing work within the scope of their employment are considered “works for hire” for which copyright ownership vests in the party paying for the creation of the work.
  • Joint Ownership of Copyrights:  If two or more authors prepare a single, inseparable work, all authors will be co-owners of the copyright in the work.  Likewise, where works are prepared in response to a commission, the parties may agree that both parties are co-owners of the copyright in the resulting work.

In the event of joint ownership, each co-owner may grant a non-exclusive license to use the work without the consent of the other co-owners subject to a requirement that any profits gained through such licenses must be shared equally among the co-owners.

  • Copyright Licenses and Assignments:  The owner of a copyrighted work may convey to third parties a right to use the work.  Such a transfer is called a “license.”  The license may be without restriction on the permissible uses by the licensee or it may be limited to specifically enumerated uses.  The license holder may also be given the right to issue sub-licenses.  Copyright licenses, however, do not transfer ownership of the copyright itself.

A sale of the copyright itself is referred to as a copyright assignment.  Unless the assignment occurs by operation of law (e.g., bankruptcy court decree or inheritance) an effective assignment of a copyright must be made in writing and must be signed by the owner of the copyright.

  • The “Fair Use” Doctrine and Reverse Engineering: under copyright law, copying of a copyrighted work will not constitute an infringement if the act of copying falls with the definition of a “fair use.”  The so called “fair use doctrine” prevents copyright owners from bundling their copyrighted works with other works or expressions and thereby restricting the use of then non-copyrighted work or expression.  It also limits the ability of the copyright owner from foreclosing valid efforts to “reverse engineer” the non-copyrightable concepts and ideas that underlie computer software programs.  See Sega Enterprises Ltd v. Accolade, Inc., 977 F.2d 1501 (9th Cir. 1992) (Act of copying copyrighted software program as part of a program to reverse engineer a non-infringing program held to be a fair use when copying of the software afforded the only means to gain access to unprotected functional ideas embedded in the program).
  • Public Domain Material: works in the public domain may be copied and used without restriction.  Such public domain works include works (including software) for which the copyright has been lost and works created by U.S. government employees.  Third parties may lawfully reverse engineer software to discover the public domain elements of otherwise copyrighted software.
  • Copyrights and the Internet: DMCA (Digital Millennium Copyright Act) allows for contributory infringement for hosts of infringing material after notice.  As such, the commonly-known DMCA Take-Down Notices allow for contributory infringement claims and usually result in the offending material being removed form the website.

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