Copyright is a form of protection provided to the authors of “original works of authorship.” Copyright provides protection for the original and creative expression of an idea which is embodied in a tangible medium. The test for originality is that the work has “more than a de minimis level of creativity.”
United States copyright law is governed by The Copyright Act, 17 U.S.C. § 101 et seq. The purpose of providing copyright protection is to promote the growth of the useful arts and science, and to grant exclusive rights to the author for a limited time, as an incentive to create such work.
1) Literary Works(i.e., books, magazine articles, blueprints);
2) Computer Programs and other software, including the graphics and icons of web pages;
3) Musical works (i.e., lyrics of a song);
4) Dramatic works (i.e., stage pays, screenplays, speeches);
5) Pantomime and Choreographic works (i.e., dance routines);
6) Pictorial works (i.e., paintings, photographs, murals);
7) Graphic works (i.e., maps, architectural plans, advertisements, posters, etchings);
8) Motion pictures, TV shows, and other audiovisual works;
9) Sound recordings (i.e., the fixation of sounds of music being performed);
10) Architectural Works (i.e., buildings); and
11) Fictional Literary or Graphic Characters (i.e., Rocky and James Bond are copyrightable but mere stock characters and characters that are not the “story to be told” are not).
See, 17 U.S.C. § 102(a).
Neither publication nor registration is required to gain copyright protection. However, a federal copyright registration is required in order to pursue a copyright infringement action. See, 17 U.S.C. § 411. In addition, a federal copyright registration provides the owner procedural advantages in the event of an infringement lawsuit, including the ability to obtain statutory damages and attorney’s fees.
In federal court, a federal registration constitutes prima facie evidence of copyright protection and places the burden upon the Defendant in an infringement lawsuit to prove otherwise. A Plaintiff in an infringement lawsuit is prevented from recovering statutory damages or attorney’s fees if the work is not registered prior to the infringement, unless the work is registered within three months after first publication of the work.
See, 17 U.S.C. § 412.
The United States Copyright Office is responsible for issuing Copyright registrations. Similar to the registration process for trademarks, submission of a specimen of use is required. For example, if you are trying to register computer software you would submit the source code as the specimen of use.
The law firm of 500law. represents authors, graphic artists, painters, photographers, web designers, musicians, songwriters, composers, rappers and other lyricists, music producers, choreographers, dancers, models, video producers, videographers, website owners, nightclub, bar and restaurant owners and employers and assignees of all of the above such as record companies, publishing companies, content owners, for purposes of seeking copyright protection, litigating against copyright infringers and defending infringement claims. Contact 500law now for a consultation regarding the various avenues of copyright protection available for your original works of authorship.
Infringement penalties for violating a copyright can be severe if not properly defended or settled. A copyright owner is entitled to and may receive actual damages, profits, statutory damages, and willful infringement damages. The court can also issue injunctions prohibiting continued infringement or issue a writ of seizure to impound infringing articles. The court may also order the infringer, or a plaintiff of a misguided claim to pay attorney’s fees.
Copyright infringement actions are fairly common in the music, hospitality and entertainment industries. For example, music performance rights societies such as BMI, ASCAP and SESAC often sue nightclub, bar and ]restaurant owners for unpaid license fees or for copyright infringement. Music composers and lyricists often sue music labels, music distributors, music producers and artists for unauthorized uses or sampling of their music, songs, lyrics and recordings. Photographers and artists often sue their former clients, customers and employers for unauthorized use and copying of their photos, sketches, paintings, computer generated art, video and other artwork.
The attorneys at the law firm of 500law are experienced in prosecuting and defending copyright infringement matters and disputes as to ownership of copyrights. Contact us immediately if you have received a “cease-and-desist” type letter or have been served with a lawsuit.
Attorneys at the law firm of 500law are licensed to prosecute and defend copyright infringement, authorship and ownership disputes before the Court of Appeals for the Eleventh Circuit, the United States District Court in and for the Southern District of Florida, United States District Court in and for the Middle District of Florida, the United States District Court in and for the Northern District of Florida. They have also enjoyed the privilege of being admitted to the federal courts of various other states to practice pro hac vice.
Owning a Copyright allows the owner to exclusively control, license or prevent others from doing the following:
1) Reproduction of a copyrighted work (i.e., copying);
2) Preparation of derivative works (i.e. new works based on a copyrighted work);
3) Distribution of copies;
4) Performance of the work publicly;
5) Display of the work publicly; and
6) Digital audio transmission (including webcasting) of sound recordings.
See, 17 U.S.C. § 106.
Seeking a license before engaging in one of the above acts is therefore necessary to avoid liability for copyright infringement. Therefore, licensing of copyrights can be lucrative for the copyright owner and its licensed use can be very lucrative for the user.
The law firm of 500law can assist its clients with licensing their copyrights and can assist its business clients in obtaining valid licenses from copyright owners who seek to use music, video, literature or other protected works in commercials, in videos, on websites, in nightclubs, restaurants, concerts, music festivals, bars and retail stores. If you have already made an unauthorized use of copyrighted material in your restaurant, nightclub, on your website or elsewhere, and you have already received a cease-and-desist type letter or have been sued for infringement, please contact us immediately and also read the information located at this link: www.500law.com/LegalServices/IntellectualProperty/Copyright/Litigation/Policing
The law firm of 500law can help employers, employees and contractors navigate through ownership issues and potential disputes as to ownership of copyrights in website artwork, website text, photographs, video, music, literature, marketing material and other works. The firm can draft agreements to clarify ownership and works-made-for-hire.
Generally, the “author” of a work owns the copyright. The “author” can be the actual person who created the work, or (s)he could be a person who hired/contracted an artist to create the work. In this situation the work may be considered “made for hire.” See, 17 U.S.C. § 201.
Under the work “made for hire” doctrine, the initial analysis hinges upon whether the work was prepared by an employee or an independent contractor based upon application of general principles of agency law. If the work was created by an employee, then the next step is to determine whether the work was made within the employee’s scope of employment by looking at the following factors:
1) Whether the work is the type of work that the employee is employed to perform;
2) Whether creation of the work occurred substantially within the authorized time/space of employment; and
3) Whether creation of the work was actuated, at least in part, by a purpose to sever the employer.
See, Genzmer v. Public Health Trust of Miami-Dade County, 219 F. Supp. 2d 1275, 1279-83 (S.D. Fla. 2002).
Thus, if a court finds that the work was made by an employee within the scope of the employee’s employment, the author of the work is the employer, unless there is a written agreement stating otherwise.
If the work was made by an independent contractor, then the independent contractor is usually the author of the work, unless there was a written agreement expressly stating that the “work is a work made for hire” and the work falls within one of the statutorily enumerated categories. See, 17 U.S.C. § 101. Often, businesses have employees/independent contractors sign a contract designating the work to be “made for hire” in order to avoid the above legal analysis.
There may also be joint owners of a copyright if more than one person/entity contributed original expression with the requisite intent that their contributions be merged into inseparable or interdependent parts of a unitary whole. Each authors’ contribution must be fixed into a tangible medium, unless each author contributed material that without each other would not be copyrightable (i.e., in the context of a comic book, if one person contributes character drawings and another person contributes the written storyline). See 17 U.S.C. §§ 101, 201.
Contact us if you have questions about ownership of a copyright. Contact us immediately if you in the midst of a dispute as to the ownership of a copyright if you have received a cease-and-desist type letter or have been sued for infringement. Also read the information located at this link: www.500law.com/LegalServices/IntellectualProperty/Copyright/Litigation/Policing
The loss of a copyright infringement action at the trial level can have serious consequences, and can lead to financial ruin. If you were unsuccessful at the trial court level in a copyright infringement case, feel free to contact our offices about a possible appeal to the applicable United States Court of Appeals. See also, Commercial Litigation/Appeals
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