An Overview of Intellectual Property Concepts and Issues Part III: Copyrights

Prior articles addressing patent and trademark intellectual property concerns have appeared in this column.In this third part of the four part series, we now look to the intellectual property known as copyrights.

Copyright protection provides a monopoly on the expression of an idea, not the idea itself. Any expression can be copyrighted, and the copyright attaches as soon as the expression is fixed in some tangible or perceptible form. A copyright subsists in an original work of authorship fixed in any tangible medium of expression, now known or later developed, from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “original work of authorship” has not been statutorily defined, but is defined at common law as being comprised of two essential elements: expenditure of intellectual effort, and originality. Ingenuity, uniqueness, and esthetic merits are not required. Originality means that the work owes its creation to the author, which in turn means that the work is not slavishly or mechanically copied from others.

Literary, musical, dramatic, graphic, sculptural, architectural, and audiovisual works are all eligible for copyright protection. Compilations, collections and derivative works based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adopted including a work consisting of editorial revisions, annotations, elaborations, or other modifications also represent original works of authorship.

Copyrights are initially owned by the author of the work. In case of a joint work, the authors are co-owners of copyright. In case of work made for hire, the employer of the person for whom the work was prepared is considered the author, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. Work made for hire is a work prepared by an employee within the scope of employment, or a work specially ordered or commissioned for a statutorily prescribed use, if the parties expressly agree in a “written instrument singed by them” that the work shall be considered a work made for hire.

Violation of any of the exclusive rights (to reproduce, adopt, distribute, perform or display) of the copyright owner or of the attribution and integrity rights of the author results in copyright infringement. The material elements of infringement are access to the protected work and substantial unauthorized copying. Additionally, a relevant inquiry is whether there is substantial similarity as to the general ideas and expression so as to constitute infringement. If infringement is found, remedies can include an injunction to prevent further copying, impounding and disposition of infringing articles, and monetary damages.

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