Under intellectual property laws, a copyright is a legal right that protects an author’s work by providing the author with exclusive publication, distribution, and usage rights for their work. Thus, a copyright prevents others from using the author’s originally authored work.
Under the federal copyright law, a copyright entitles an owner to many exclusive rights, such as the right to reproduce the copyrighted work, distribute copies of the copyrighted work to the public for sale, and perform the copyrighted work.
Examples of copyrightable works include: books, poems, song lyrics, plays, sound recordings, paintings, drawings, choreography, sculptures, software, broadcasts, scripts, motion pictures, websites and online content, and many more.
It is important to note that you are not required to register your copyright with the U.S. Copyright Office, as the creation of the work is automatically afforded copyright protection without any registration needed. On the other hand; registering a copyright affords the original author additional protections.
Therefore, registering your original work and being issued a certificate of copyright registration will make it easier to collect damages and attorneys fees, if demonstrated that someone has “infringed” on your work.
As noted above, a copyright owner has many legally protected rights for their original works. Copyright infringement occurs when a person encroaches on a copyright owner’s exclusive rights without their express consent.
When a person uses a copyright owner’s exclusive rights without their permission, that is considered to be a copyright infringement, or a violation of the copyright.
In addition to the rights mentioned above, the following are examples of copyrights and common copyright infringements:
- Infringement of the Right of Reproduction: As mentioned above, copyright owners have the exclusive right to reproduce their work in any fixed form. Thus, when a person reproduces a work by copying it and sells it, such as copying a painting of an original artwork and selling it, that is an example of infringing an owner’s right of reproduction;
- Infringement of the Right of Public Performance: Copyright owners have the right to publicly perform their work. Thus, if a person publicly performs an original protected song without permission, that is an example of infringing the copyright owner’s right of public performance;
- Infringement of the Right of Distribution: Copyright owners have the right to distribute their work. An example of infringing an owner’s right of distribution is if someone sells unlicensed copies of their original work such as a work of literature or art;
- Infringement of the Right to Derivative Works: Copyright owners have the right to modify their original work or create a new work based on their older works. Thus, when a person creates a derivative of an original work without permission, such as creating a movie based on a book without the author’s permission, this a common example of copyright infringement; and
- Infringement of the Right of Public Display: Copyright owners have the right to publicly show their work, including publishing their work online. Therefore, if a person publishes someones original work online without the owner’s permission, this is a common example of infringing a copyright owner’s right of public display.
To prove that someone infringed on your copyright you must show an actual copying of protected material that has led to substantial similarity between the infringing work and your copyrighted work. Generally, a new work is substantially similar to yours if the overall look and feel of the new work is the same as your copyrighted work.
For example if your painted a picture of pugs playing poker, and you see that someone painted a picture of dalmations playing go fish, there may not be substantial similarity between the two works to prove infringement.
Further, there are limitations on a copyright owner’s exclusive rights. For instance, people may legally use a copyright owner’s original work if it is within a fair use exception of copyright protections or if the work is deemed to be in the public domain (i.e. the work is no longer protected by a copyright).
As noted above, although someone’s work may seem very similar to yours, it might not actually infringe your copyright if the material it copies is not protected by United States Copyright Laws.
You may not be able to sue for copyright infringement if the copied material is:
- Factual Information: Facts are not protected by copyright. Therefore, if you wrote a book about a historical event, such as information on a historical battle, and someone else wrote about the same historical event, but used different words and a different style, you could not sue them for copyright infringement. Another example is a phonebook. A phonebook simply contains facts about the persons living in a community, and is thus not copyrightable. However, if you create a phonebook and someone copies the exact structure and style of the phonebook, such as using the same layout, font, etc., then you may have a case for copyright infringement;
- A General Idea: Ideas are also not protected by copyright. Therefore, if you wrote a play about a hero with extraordinary strength, the creators of Superman could not sue you for copyright infringement on that alone. However, if you create a superhero with amazing strength that works for a newspaper company and is named Clark Kent, then you will likely be liable for infringing a copyright; or
- Non-original Elements: Any elements that necessarily follow from general ideas are also unprotected. For example, if you set a story in San Francisco and have your characters drive across the Golden Gate Bridge, this element of your story is probably not protected.
If you believe that someone has infringed on your copyright, it may be in your best interests to consult with a knowledgeable and well-qualified intellectual property lawyer.
An experienced intellectual property lawyer will be able to assist you in navigating the often tricky terrain of copyright infringement. They will be able to assist you in building up your case against the infringer, and even represent you in a court of law, if necessary.