What Is A Copyright?
Copyright is a form of protection provided to the authors of “original
works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published
and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted
work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted
work publicly, or to display the copyrighted work publicly.
Copyrights are registered by the Copyright Office
of the Library of Congress.
Benefits And Advantages Of Prompt Federal Registration.
Significantly, federal registration is mandatory
for works of U.S. origin before an infringement action may be initiated. In addition, a certificate of registration obtained
within the first five years of publication is prima facie evidence of the validity of the copyright and of the facts stated
in the certificate. Federal registration prior to infringement allows the owner to recover statutory damages, even if actual
damages cannot be proven, and attorneys' fees. However, if infringement of an unpublished work has commenced prior to registration,
the ability to obtain damages is limited, namely, there can be no award of statutory damages or attorneys’ fees. In
comparison, if infringement begins after publication of a work but prior to registration, a copyright owner may still register
the work within three months after the first publication and obtain statutory damages and attorneys’ fees. Federal
registration also entitles a registrant to request Customs to stop the importation of infringing articles into the U.S.
The owner of a copyright has the exclusive right to reproduce the copyrighted
work in copies, to prepare derivative works based upon the copyrighted work, to distribute copies of the copyrighted work
to the public and to display the copyrighted work publicly. Anyone who violates any of these exclusive rights, even unintentionally,
is an infringer of the copyright.
Definition of a Derivative Work
A derivative work is one that is based upon
a preexisting work, in which the preexisting work is recast, transformed, or adapted. Examples of derivative works include
editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.
of Copyright Infringement
In order to succeed on its claim for copyright infringement, a claimant must establish
by a preponderance of the evidence the following:
1. That it owns valid copyrights in the work; and
That an accused infringer copied claimant’s work.
First Element – Ownership of Valid Copyrights
In order to establish ownership of valid copyrights in each of its works, a claimant must show that:
Each work is the independent creation of the claimant, i.e. it originated with the claimant and was not copied from other
2. Each work is creative, that is, it contains a modest amount of intellectual labor. Only a very slight
amount, or a “modicum” of creativity is required for a work to be copyrightable.
In determining whether
the works at issue are sufficiently creative, one must consider them as a whole. Moreover, it is not necessary that each of
the individual aspects of these works be creative in itself, as long as those elements have been combined and arranged in
a matter indicating some ingenuity.
Second Element – Copying by Defendant
If there is no direct
evidence of copying, the claimant may prove that the alleged infringer copied its work by showing that
1. The alleged
infringer had access to each work; and
2. That the alleged infringer’s works are substantially similar to
the claimant’s works.
If there is a reasonable possibility that the alleged infringer had
an opportunity to view the claimant’s works prior to the time the alleged infringer created the works accused of infringement,
then one must find that the alleged infringer had access to the claimant’s works. The claimant may establish this element
by showing that its works were widely disseminated to the public.
The test for
determining the similarity of copyrightable expression is whether the alleged infringer’s works are so similar to the
claimant’s works that an ordinary reasonable person would conclude that the alleged infringer unlawfully appropriated
the claimant’s protectable expression by taking material of substance and value. That is, whether the alleged infringer’s
works have captured the total concept and feel of the claimant’s works.
In considering whether there is similarity
of expression, you must separate the idea of the claimant’s works from the protectable expression of that idea, and
keep in mind that the law prevents the copying of the protectable expression of the claimant’s works, and not the idea
of the works.
Copyright Infringement - Willfulness
If you the alleged infringer has violated any of
the claimant’s copyrights in its works, the judge or jury will then be asked to determine whether such infringement
was willful. The judge or jury may find that infringement was willful if the infringer knew that its conduct was an infringement
or if the infringer acted in reckless disregard of the claimant’s rights. In considering the issue of the infringer’s
willfulness, the judge or jury may consider evidence that the infringer ignored the claimant’s notices about copyright
protection, did not seek advice of an attorney, and passed the matter off as a nuisance.
© Copyright Law
Offices of Mark E Wiemelt, P.C. 2003-17. All rights reserved.