Copyright law is often the first and best line of defense against unauthorized reproduction of the products of the creative mind. As important as the law is to the work of so many firms, such as advertising agencies, software developers, artists and music publishers, it is a frequently misunderstood law. The following illustrations highlight a few of the important pillars of federal copyright law everyone should know:
1. You recently wrote a scholarly article for a trade journal, and shortly after it was published discovered that a substantially similar article appeared in another journal. Unfortunately, you never registered the work with the U.S. Copyright Office, nor did you put any copyright notice on the article. Do you have any rights?
Yes. Under the Copyright Act of 1909, copyright owners forfeited their rights when they failed to mark each copy of their work with a proper copyright notice (name, date and copyright symbol). Under the 1976 and 1988 amendments to the statute, however, the formalities of the earlier law have been all but eliminated. Now, for all works first published after March 1, 1989, no copyright notice is required to secure protection for the author (although it is still recommended and used widely). Moreover, contrary to popular myth, registration affects only the enforceability, not the existence, of copyright. Copyright arises upon creation of the work, and registration merely gives the author certain additional rights, such as the right to sue to enforce the copyright and the right to claim enhanced damages.
2. You discover that someone first copied and sold your computer program ten years ago, and is continuing to infringe the work to this day. Can you pursue such a claim even though it is so old?
Yes. Although the Copyright Act contains a three-year statute of limitations, most courts hold that either:
1) the statute does not begin to run until the date of the last act of infringement; or
2) the statute permits recovery of all damages occurring within the three-year period preceding suit, even if some acts of infringement occurred beyond that period. Therefore, you can probably still pursue much of the claim.
3. You are the owner of an advertising agency, and your creative director tells you that she had no idea that employees were making unauthorized use of copyrighted material for the benefit of the agency. Is this a defense?
No. Innocent intent, good faith, or even subconscious copying are not defenses to copyright infringement. Although it may have a great bearing on the issue of whether the infringement was willful (subjecting the company to enhanced damages), the copyright owner only needs to prove that unlawful copying occurred. The company itself may be liable if it provided the means for its employees to commit the infringement, and had or should have had knowledge of the infringing activity (known under the law as “contributory” infringement), or if it had the right to control the employee's conduct and received a financial benefit from the infringement (known as “vicarious” infringement).
4. You have a great idea you want to copyright, and it involves a new system for processing customer orders. You have written down your ideas in a concise document. Will a copyright registration protect this idea?
Probably Not. Unlike patents, copyrights do not protect ideas, only the expression of those ideas. Moreover, the rights granted by Congress to copyright holders in the Copyright Act are not unlimited. The statute grants a copyright holder certain exclusive rights, including:
1) the right to reproduce;
2) the right to prepare derivative works;
3) the right of public distribution;
4) the right of public performance; and
5) the right of public display.
The Act does not give the owner a monopoly on the ideas embodied in the work, and in fact the statute is explicit in stating that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery...." This is the famous "idea/expression" dichotomy of copyright law. Therefore, even if you file a registration, the scope of protection may be quite limited.
