Exceptions to Copyright Ownership

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 What is Copyright?

A copyright is used to prevent another individual or entity from using an individual’s originally authored work. Copyright laws protect original works of authorship.

The item or work to be copyrighted should be an original and not a copy or a reproduction of something that is already copyrighted.

Federal copyright laws provide owners with numerous exclusive rights, including the rights to:

  • Reproduce the copyrighted work;
  • Distribute copies of the work that is copyrighted for sale to the public;
  • Perform the copyrighted work;
  • Produce a license that is derived from other copyright material; and
  • Licensing rights to manufacture and make a product.

What are the Different Types of Copyrighted Works?

A copyright can be used to protect many different types of creative works, including:

  • Literary;
  • Dramatic;
  • Musical; and
  • Artistic.

These categories of works may include works such as:

  • Recorded or sheet music;
  • Architecture;
  • Books and novels;
  • Poetry;
  • Computer software, video games, and CD-ROMs;
    • These types of works may not be protected if they were already distributed using a copyleft agreement; and
  • Art, which includes:
    • paintings;
    • plays;
    • dance choreography; and
    • sculptures.

What is Copyright Protection?

Pursuant to federal laws, individuals automatically receive copyrights to their original works once they are fixed into a tangible medium of expression. The individual is required to have created their work and not adapted it from a work that was already in existence.

The individual’s work must be in a sufficiently permanent medium so that other individuals or entities are able to view, communicate, and reproduce it. Copyright protections apply to a work the moment an author fixes it into a tangible form without the author being required to take any steps.

Once the original work has copyright protections, the author can determine what parties are permitted to use their work and for what purposes. Once the work is protected, no other individual or entity may use it without the creator’s permission.

Is the Creator of a Work Always the Copyright Owner?

The traditional rule states that the creator of a work owns the copyright to that work as soon as the work is put into a tangible medium of expression, as noted above.

However, there are exceptions to this rule, including when the copyright is related to:

  • Employees;
  • Made for hire; or
  • Sale.

If an employee creates a work in the course of their employment, the employer then owns that copyright. This is often provided in the employment contract an individual signs when they are hired.

If an independent contractor signs a written agreement that states that the work they created is made for hire, then the individual or organization who ordered the work owns the copyright, so long as that work is:

  • Part of a larger literary work, for example, an article in a newspaper;
  • Part of an audiovisual work, such as a motion picture;
  • A translation;
  • A supplementary work, such as an appendix or introduction;
  • A compilation;
  • An instructional text;
  • A test or answer materials for a test; or
  • An atlas.

If the work does not fall within one of the categories listed above, it is not made for hire and the creator owns the copyright. If the creator of a work sells the entire copyright to another individual or entity, then that individual or entity will own the copyright.

What is Copyright Licensing?

Copyright licensing is the transfer of one or more of the exclusive rights of a copyright owner.

What Happens if I Transfer My Exclusive Rights to Another Person?

If an individual transfers one or more of their exclusive rights to another individual completely, they have granted them an exclusive license. An exclusive license provides its owner with the right to exclude all others, including the original owner of the copyright, from exercising the rights that are granted in the license.

Copyright owners may choose to grant an exclusive license for several reasons, such as making money or publicity. To make money, a licensee may pay a copyright owner for the use of one of the rights.

With publicity, for example, the author may authorize a movie studio to provide a movie based upon a book in order to draw more interest and publicity to the author and the book.

What is Copyright Infringement?

Copyright infringement occurs when an individual or entity violates the exclusive rights of a copyright owner without their express consent. There are several categories of copyright infringement, including:

  • Infringement of the right of reproduction;
  • Infringement of the right of public performance;
  • Infringement of the right of distribution;
  • Infringement of the right to derivative works; and
  • Infringement of the right of public display.

What are Some Copyright Infringement Penalties?

Copyright infringement penalties may be more serious than other forms of intellectual property claims. This is due to the fact that many federal and state laws make it a crime to engage in the infringement of copyrighted material.

These laws are often referred to as anti-piracy laws. They aim to protect electronic media such as:

  • Songs;
  • Movies; and
  • Computer files.

Because of these infringement laws, copyright infringement may result in criminal penalties, including criminal fines or a short jail sentence. The criminal fines may reach hundreds or thousands of dollars.

In addition to federal or state criminal penalties, the owner of the copyright may file a civil lawsuit against the infringing party. This may result in additional legal consequences, for example, a monetary damages award.

In order to obtain damages through a civil lawsuit, the owner of the copyright must prove the value of the intellectual property rights that were infringed upon. Common legal penalties associated with copyright infringement include, but are not limited to:

  • Compensatory damages: The infringing party will be required to pay the copyright holder the money that they gained from the unauthorized use of the copyright;
  • Statutory damages: These damages are established by statute, specifically Section 504 of the Copyright Act. Statutory damages allow a copyright owner to recover a certain amount of damages, typically between $200.00 and $150,000.00 per work that is infringed. Statutory damages will be higher for a party that willfully violated a copyright, and lesser for a party that was not aware that they were violating a copyright;
  • Injunction: An injunction is a court order that orders the party who is violating the copyright to stop their infringing acts;
  • Orders of seizure: If an infringing party possesses illegal copies of a copyrighted work, the court will generally order that the illegal property be seized; or
  • Criminal penalties: If willful copyright infringement occurs, the infringing party may also be held criminally liable. If convicted, the infringing party could face criminal penalties including imprisonment for a period of up to 5 years, fines of up to $250,000.00, or both for each violation.

It is important to note that a copyright infringement lawsuit may include any combination of the types of damages listed above in addition to attorney’s fees and court costs.

Do I Need a Lawyer to Resolve My Copyright Ownership Problem?

If you are not sure of your status as a copyright holder, it may be helpful to consult with an experienced copyright lawyer. Your lawyer can help you determine whether you or another individual or entity owns the copyright in question.

Your copyright attorney can also represent you in court if a dispute arises related to a copyright issue.

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