Copyright is a form of protection provided by the United States to the authors of "original works of authorship" including literary, dramatic, musical, artistic and certain other intellectual works. This protection is available to both published and unpublished works. This gives the owner of the copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the copyrighted work in copies or phonorecords;
• To prepare derivative works based upon the copyrighted work;
• To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;
• To perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
• and To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work.

Requirements for Protection

Originality: a work must be of independent creation. (Not copied or recreated.) In other words, you can't take someone's screenplay and simply put it to music, calling it "original." (In an infringment suit, courts will look at the amount of "substantial similarity" of one work to an earlier work.)

Creativity: Although the work need show creative input, the level of creativity is slight; "even a slight amount will suffice."

Fixation: Protection attaches automatically to an eligible work or authorship the moment the work is fixed in a tangible medium of expression; "now known or later developed." Again, you can't take someone else's videotape and put it on DVD, calling it your own just because there was no DVD when the video was created.

Not Protected: "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 such work. (In other words, the idea for a script cannot be copyrighted - but the written treatment and format CAN be protected.)

Types of Ownership

Single Author: The person who creates the work, owns the work.
Joint Works: A work prepared by two or more authors. The work as a whole is owned by each author. If each is to own specific parts of the whole, a written agreement to that effect should be made. The right to use a portion (or whole) of the joint work can be granted by any one of the joint owners since they are equal owners.
Work-for-hire: A work-for-hire is usually a work created by an employee within the scope of employment. The employer is deemed to be the owner and author of the completed work.

Duration of Copyright (incl. Sonny Bono Copyright Term Extension Act of 1998)

The duration of a copyright is a tricky topic. If the copyright has expired, the work falls into the realm of public domain (PD) and can be used without fear of infringement. Since the length of copyright duration changed in 1978 and was again modified in 1992, and again in 1998 it is more complicated to determine whether a copyright is still in force. If you have any doubts about the work being PD, it would be in your best interest to seek advice from a copyright attorney or copyright search firm.

Registered between 1909 and 1978:

• Protected for 28 years and renewable for another 28 years.
• If copyright was in its first 28 year period when the law changed in 1978, the work could be renewed for 67 additional years. If in its second 28 year period, automatically extended to a total of 95 years.

Registered 1978 or after:

• Life of the author plus 70 years.
• If joint copyright, 70 years after death of last surviving author
• Work for hire, the lessor of either 95 years from publication or 120 years from creation.

IMPORTANT: The present law does NOT require that a copyright notice be affixed to the work. Just because there is no notice, don't assume it is not protected -- it probably is. However, if you are seeking to maximize protection of your work, it is always best to affix the notice. (© Copyright, date of first publication, and full name of owner)

Overall the law tries to provide a 95 year term of protection to works properly registered in and after 1964.

Remedies for Infringement

Injunctive relief - federal court order to stop
Seizure - during lawsuit, all copies can be seized pending the outcome of the case.
Damages - Actual damages to copyright owner plus all profits from infringement
Statutory damages - $200-25,000 per act (non-willful)
Punitive damages - up to $500,000 1st offense/5 years (willful) $1 million/10 years subsequent)
Costs and Attorneys fees - court will determine
Statute of limitations - suit must be filed within three years of infringement.

TYPES OF REGISTRATION

The most commonly sought copyright permissions for corporate communication use are registered as text, sound recordings, visual arts or performing arts. Multi-media and audiovisual projects would be registered in one of these categories as well.

MUSIC

It is important to remember that music can be copyrighted in several ways:

• Lyrics can be copyrighted
• Score and arrangement can be copyrighted
• Performance may be copyrighted by record label

Song is usually owned by writer and publisher.

Most Common Licenses:

• Performance License - To perform the work in the presence of an audience. (MAY be covered by a blanket license)
• Sync License - Allows you to cut visuals to composition.
• Mechanical License Can record and distribute the music on an audio only format.

Adaptation Rights

Allows for use and alteration of the music to fit your final product. Also used for parody applications. (Might also be required for use of sound recording depending on the use.)

For sound recording clearances you will most often require:

Master Use Rights; The use of an original work in full or in part.

The rights to musical compositions and sound recordings are likely to be assigned to music performing rights organizations (PRO's) such as BMI, SESAC and ASCAP. When a product is assigned to one of these organizations, the publisher and performers often leave the task of handling the details of copyright requests to them. (Some performers do not permit these clearinghouses to grant performance rights for them, they will often deal only with lawyers, talent agencies and copyright search firms.) All of the major PRO's are accesible through the internet. They are:

These are fun sites to visit because they have search capacities for songs when you only remember a few words, or you only remember the song, but not the artist. You can even download portions of a tune to see if it's the one your looking for. Just remember to get clearance for it before you use it!

REMINDER: Often you will need more than one license for a specific project. In any case, be sure to get a warranty from any party who licenses something to you that they have those rights to grant to you and indemnity so if you are sued, they pay.

Public Performance License fees

New glitch in corporate use of music.
ASCAP and BMI now charging for performance using copyrighted music.

• If you show a video for which you have paid for rights - you will now be charged an additional fee for showing the video. Fees will be about 4 cents per attendee to your meeting or convention with a $50 minimum.
• Fee will be a public performance license fee.

VISUAL ARTS

For a specific work of visual art, there are several ways to seek ownership information. The most common is to contact the U.S. Office of Copyright to do a search of copyright registration. It is also common for a person to contact the magazine, museum, publisher or other location of the work desired to request ownership information.

Although there is no specific clearinghouse for the rights and permissions to use protected works of visual art, there are several stock houses the maintain libraries of such works. These stock houses have negotiated rights for specific works and can often find the work you request or similar works that have been previously cleared.

MULTI MEDIA

In any multimedia work, there may be several elements, usually including a motion-picture element or other audiovisual element, or a sound recording element.

An audiovisual element consists of a series of related pictorial images intended to be shown by the use of projectors, viewers, or electronic equipment. This element may be a filmstrip, slides, a film, a videotape, a videodisk, or a CD-I (interactive compact disk).

A motion-picture element is an audiovisual element which consists of a series of related images which, when shown in succession, impart an impression of motion. This element may be in the form of film, videotape, videodisk, or a CD-I.

A sound-recording element is a series of recorded sounds. Sounds accompanying an audiovisual or motion picture element are not defined in the copyright law as a "sound recording."

There is some activity in this area of copyright law. With the increased interest in producing the new DVD format, some forms of DV might fall under multimedia protection, while others might fall under the more traditional protections of motion picture, sound recording or text. As with any new format, the laws will eventually catch up with the technology. In the meantime, to use DVD information, it would be best to seek professional help in copyright searches.

LIMITATIONS

Fair Use

Fair use is a way to use copyrighted material without fear of infringement. However, restrictions apply. Prior to using any material under Fair Use provisions, you should determine:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Examples of fair use:

-the quoting of small portions of a copyrighted book in connection with a review of the book.
-quoting a portion of a copyrighted speech in an article published in a scholarly journal.
-displaying a copyrighted painting in connection with a television news report on the artist.

 

Not likely to be protected if whole work is appropriated. i.e. cartoon.

It is important to note that corporate use of copyrighted material is rarely protected by Fair Use. The Fair Use Guidelines are specifically designed to apply to nonprofit educational facilities. Corporate training facilities ARE NOT considered nonprofit and they ARE NOT considered educational facilities under the guidelines.

Government Works

Works that are created by U.S. Government employees are not eligible for copyright protection. This includes any video, film, print, AV and other created works. However, you must be careful that the work you want to use is a product of government employees. If a production company was hired to produce the final product, chances are they own the copyright, rather than the government.

There is also a common misconception that government employees can use (infringe) any material they want because the government can't be sued. This is not true in the case of copyright. Once a work is protected, even the government must seek clearance to use the material.

COPYRIGHT YOUR WORK

For best protection affix notice including: ©, full name, date (i.e. Copyright © Mary Lynn Nichols 2000).

Then register the work by sending the following three elements in the same package to the Registrar of Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559:

• A properly completed application form;
• A non refundable filing fee of $20 for each application;
• A non returnable deposit of the work being registered. (Check specific requirements for your particular work.)
  

OTHER INFORMATION

For information on copyright forms and information contact:

Information and Publications Section, LM-455
Copyright Office
Library of Congress
Washington, DC. 20559

http://lcweb.loc.gov/copyright/

Status of pending legislation:

http://lcweb.loc.gov/copyright/penleg.html