Copyright Frequently Asked Questions
A copyright is a bundle of exclusive rights in a work. A copyright consists of:
- Reproduction Rights - the right to reproduce the work in photocopies, electronic copies or other formats.
- Derivative Rights - the right to prepare other works which are based on or derived from the work.
- Publication Rights - the right to distribute copies of the work to the public.
- Performance Rights - the right to perform the work publicly, including public readings and public broadcasts of the work.
- Display Rights - the right to display the work publicly.
The following types of works can be protected under copyright:
- Literary works (books, essays, poems, short stories, articles, advertising copy and computer programs)
- Musical works (music and lyrics)
- Dramatic works (plays and screenplays)
- Pantomimes and choreographic works
- Pictorial, graphic and sculptural works (photographs, paintings, illustrations, drawings and sculptures)
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
- Collective works
A copyright comes into existence upon the creation of an “original work of authorship fixed in a tangible medium of expression.” A work will be “original” if it has not been copied from any other work, and it will be “fixed in a tangible medium of expression” as soon as it is fixed in some medium from which it can be perceived, either directly or with the aid of a machine or other device.
Except in the case of works made for hire, the person who creates a work will own the copyright in that work. If two or more persons contribute to a work and each person intends for his or her contributions to be merged with the contributions of the other to form a single, integrated work, the work will be a joint work, and each contributor will be an equal co-owner of the copyright. If a work is a work made for hire, the copyright in the work will be owned by the employer of the person who created the work, or, if the work was created by a freelancer, by the person who commissioned the freelancer.
A work made for hire is: (1) a work created by an employee acting within the scope of the employee's employment; or (2) a work created by an independent contractor, under a written agreement signed by the contractor, provided that the work is for one of nine specific uses listed in the Copyright Act. If a work is a work made for hire, the employer or person who commissioned the freelancer to create the work will be the owner of the copyright in the work.
The Copyright Act defines a joint work as "a work prepared by two or more authors, with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." If a work is a joint work, each contributor will be an equal co-owner of the copyright in the work, and will be entitled to share equally in all proceeds from the work, regardless of the quantity or quality of the contributor's contribution.
The Copyright Act defines a collective work as a work "in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." Examples of collective works include magazines, anthologies and encyclopedias. The copyright in a collective work covers only the collective work as a whole (i.e. the order and organization of the entire magazine, anthology or encyclopedia), although the individual contributions to a collective work will be covered by separate copyrights.
The copyright in each separate contribution to a collective work will belong to the person or persons who prepared that contribution, unless the contribution was a work made for hire. The publisher of the collective work is deemed to have acquired only the right to publish the contribution in and as a part of that collective work.
The term of copyright for a work created after January 1, 1978 will be the author's life plus 70 years, or, if the work is a joint work, the last surviving author's life plus 70 years. If the work is a work made for hire, the term of copyright will be 95 years from first publication or 120 years from creation, whichever expires first. The rules for works created prior to January 1, 1978 are more complex, and are more fully explained in the article entitled Copyright Duration and the Public Domain, in the Publishing articles section of this website.
Registration of a copyright with the U.S. Copyright Office is not a requirement for copyright protection. However, the copyright in a work must be registered before the copyright owner can bring a lawsuit for infringement. Although a registration can be filed after an infringement has occurred, it is preferable to register sooner, as registration prior to infringement will allow the copyright owner to seek statutory damages and attorneys’ fees.
Copyright infringement occurs when someone exercises any of the exclusive rights comprised in a copyright without the consent of the copyright owner. Making copies of a work, distributing, displaying or performing a work, or creating and distributing a derivative work based on the work without the prior authorization of the copyright holder will constitute copyright infringement.
In order to sue the infringer, the copyright must be registered with the US Copyright Office. If the copyright was not registered before the infringement began, the owner can still register and then file a lawsuit. However, the owner's remedies will be limited. If the registration was in place prior to the time the infringement occurred, the owner will be able to seek statutory damages ranging from $750 - $30,000, and will also be able to ask the court for an award of attorney's fees and costs. If the registration was not in place before the infringement occurred, the owner can still sue the infringer after registering, but the owner's remedies will be limited to the actual damages suffered by the owner (which may be small or nonexistent) and to an injunction ordering the infringer to stop the infringement.
Trademark Frequently Asked Questions
A trademark is a word, phrase, design or other element that is used for or with goods or services to identify the source or origin of those goods or services and to distinguish those goods or services from similar or related goods or services of others.
Simply inventing a word, phrase or design is not enough to establish a trademark. In order to have a trademark, three conditions must be met:
- You must use the word, phrase or design as a trademark - in other words, to identify to consumers the source of your goods or service.
- The word, phrase or design must not be the generic term for the goods or services for which it is used, and must not be merely descriptive of those goods or services.
- The word, phrase or design must not resemble another mark already in use in such a way as to be likely to cause confusion or mistake in the minds of consumers as to the source, origin or sponsorship of the goods or services for which your mark is used.
Trademark rights arise out of the actual use of the mark for goods or services. Thus a trademark will be owned by the person who uses that mark. Advertising and branding agencies do not own the trademarks that they develop for their clients. Rights in those marks arise only when or if the clients begin to use the marks for goods and services sold by the clients.
Trademark rights are based on use, and registration is not required. However, there are some advantages to registering your mark with the US Patent & Trademark Office. If you register your mark, you will entitled to exclusive nationwide rights to the mark for the goods or services cited in your registration. If you do not register, your rights will be limited to the states in which you have actually used the mark. Also, if you plan to use the mark as the basis for a merchandise licensing program, most licensees will want to know that the mark has been registered before proceeding with a license agreement.
Trademark registration is by class of goods or services, and there is a fee for each class for which registration is sought. Thus the cost to register a mark will depend on the number of classes for which you wish to seek registration. As a general rule, a single class registration will cost approximately $2,000, including search and filing fees.
Not necessarily. Many people assume that failure to find the exact mark that they have chosen means that the mark is available for use. However, the test for trademark infringement is likelihood of confusion: would a consumer, upon being presented with your proposed mark, be likely to believe that your goods or services are produced, sponsored or endorsed by the owner of a previously existing mark? Adding words or designs to an existing mark or adopting a foreign language translation of an existing mark will not eliminate the likelihood of confusion between your mark and the existing mark.
The title of a single creative work, such as a book or movie, cannot serve as a trademark, as it is deemed to be merely descriptive of the contents of that work. However, a series title used for a series of books or a title used for a magazine or periodical may serve as a trademark. Also, even though the title of an individual book or movie cannot serve as a trademark for that book or movie, it may function as a trademark for other goods or services, such as toys, games or clothing which are based on the book or the movie.
Trademarks do not exist in a vacuum, but are instead tied to specific goods or services. Accordingly, while you can most likely prevent someone from using your trademark for goods or services which are the same as or similar or related to the goods or services for which you are using the mark, you most likely will not be able to stop someone else from using your mark for different or unrelated goods or services.
Not necessarily. While registration may stop legitimate businesses from using your mark, persons who do not check the registration records or who deliberately set out to infringe will not be detered by registration. Trademark rights are not self-enforcing, and it is up to you to find any infringers and to take action to stop them. If someone is infringing on your mark and you do not take action to stop them, you will risk losing rights in the mark.
A trademark can only be tranferred together with the goodwill of the business for which the trademark has been used. For example, if you have used the trademark for t-shirts, you cannot sell the trademark separate and apart from the t-shirt business. Any attempt to transfer a trademark apart from the business for which the mark has been used is called a "naked assignment," and will result in the mark being deemed abandoned.
Yes, provided you enter into a license agreement with each authorized user and provided each license agreement allows you to control the quality of the goods or services for which your mark will be used. A license that does not include quality control provisions is called a "naked license," and may result in the trademark being deemed abandoned.