A copyright is a set of legal rights that allows the copyright holder certain privileges in connection with a work they have created. For example, the holder of a copyright for protected material may have the exclusive right to:
- Sell the copyrighted material;
- Reproduce the work;
- Distribute and market the copyrighted material to the public;
- Make public performances of the copyrighted material for profit.
Copyright protection applies to a wide range of works and materials, including:
- Written works such as books, essays, articles, textbooks, and the like;
- Written or recorded music;
- Electronic-related material such as software programs and codes, video material, and applications;
- Physical art such as paintings and sculptures;
- Performance art such as plays, skits, television program and movie scripts, choreographed dances, and the like.
Most people think of copyright protection as a matter of federal law, but states have copyright laws as well.
What Is Copyright Infringement?
Copyright infringement involves a person violating the exclusive rights of a copyright holder to make certain uses of their copyrighted work. For instance, only the copyright owner of a play may sanction performance of the play in public places for profit.
If another person or company attempts to perform the play in public for profit, they might be found legally liable for copyright infringement. Another example is when a person makes and distributes song recordings of copyrighted music without the permission of the copyright owner.
The consequences of copyright infringement can include civil damages for lost profits, and possibly confiscation of unauthorized copies of the copyrighted work. A copyright owner can file a civil lawsuit against the infringer to recover compensation for their losses. The civil statute of limitations is three years.
In some cases, infringement can be prosecuted criminally, but the copyright must be registered if a federal prosecutor is going to charge and prosecute a person who infringes a copyright. There is a five-year statute of limitations for federal prosecution of a person who infringes a copyright.
In order to succeed with the prosecution of criminal copyright infringement, the prosecutor must prove that the defendant willfully infringed copyright for commercial advantage. This must be done for financial gain by reproducing or distributing one or more copies or phonorecords of one or more copyrighted works with a total retail value of more than $1,000 in a 180-day period.
Or, it must be proven that distribution of a copyrighted work was prepared for commercial distribution by giving the public access on a computer network. The perpetrator must be shown to have done this even though they knew it was intended for commercial distribution.
Under the Digital Millennium Copyright Act (DMCA), a person may also face criminal prosecution if they try to circumvent a copyright control, such as digital rights management (DRM) technology or encryption. Copyright controls can either keep a person from accessing a work or limit what a person is able to do once they have access. Circumventing access controls is prohibited. Circumventing copy-control measures is not prohibited, but it is illegal for one person to give another the tools to do it. Access and copy controls are sometimes merged.
If a person wants to access a copyrighted film that has been encrypted to prevent access, and the person tries to bypass the access control, they may be liable for both civil and criminal copyright infringement. They can be found criminally liable if they circumvent access controls willfully and for the purposes of commercial advantage or personal financial gain.
More broadly, if a person makes, sells, gives away, or otherwise offers tools to help other people circumvent access or copy controls, and a person does this willfully and for purposes of commercial advantage or personal financial gain, they can also be criminally liable.
If a person writes code to circumvent access and copy controls, and other websites simply post the code, the owners of those websites can be liable under the anti-trafficking provision of the DMCA.
How Are Copyrights Obtained?
In some instances a person owns a copyright by simply creating the work. A person does not need to apply for copyright protection, because it comes into existence when a person creates an original piece of work.
As noted above, however, copyright cannot be protected through criminal prosecution unless the work is registered with the U.S. Copyright Office. This ensures that there is a valid written record of the person’s work and their copyright.
To register a copyrighted work with the U.S. Copyright Office, a person must submit an application for registration. The application can be submitted electronically or in paper form via the U.S. Postal Service.
There is an online registration system, called the electronic Copyright Office (eCO), and applying through this system has the following advantages:
- The filing fee is lower than the fee for paper filing;
- The time for processing the application is shorter;
- A person can track the status of their application online, which is not possible with a paper filing;
- Payment can be made using either a credit or debit card, electronic check, or through a Copyright Office deposit account; and
- Applicants can upload certain categories of deposits directly into eCO as electronic files instead of mailing them to the Office.
The three items that a copyright application must contain are as follows:
- Application Form: There are several different application forms for different kinds of works as well as different kinds of registrations. Registration usually covers only one copyrighted work. However, group registration is available for certain types of work. Of course, the person who applies must complete and sign all forms they submit to the Copyright Office;
- Filing Fee: A non-refundable filing fee must be paid when the application is submitted. The amount of the filing fee is different depending on whether the application is submitted online or on paper and whether it is a single registration or group filing. The fees range from $25 to $140. Most fees are less than $100. An up-to-date list of the fees can be found at the website of the U.S. Copyright Office;
- Deposit: A deposit is a copy of the work being registered. A copy must be “deposited” with the Copyright Office. All deposit copies are kept by the Office or the Library of Congress. The applicant should understand that deposits are not returned to the copyright owner. The requirements for the deposit differ depending on the type of work being registered. More information about the type of deposit needed for a particular kind of work is available online from the Copyright Office.
In other cases, a copyright may be verified through other means. For example, with electronic media, the copyright date and time of a work can be traced through the electronic stamp created when the work goes online via the Internet.
Do I Need a Lawyer for Help with a Copyright Claim?
You may wish to consult a copyright lawyer if you need help obtaining, defending, or contesting a copyright. Your attorney can advise you on copyright law and can help determine what your rights are in any given situation. Also, if you need to file a lawsuit for copyright infringement, your attorney can represent you in that endeavor.
