Under the Copyright Act, a literary work is a work other than an audiovisual work that is expressed in “words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.”
In other words, literary works are nondramatic works that explain, describe, or narrate a particular idea, theme, or subject using explanatory, descriptive or narrative text instead of dialog or dramatic action.
In general, a nondramatic literary work is intended to be read. This type of work is not intended to be performed before an audience.
Examples of literary works may include, but may not be limited to:
- Fiction;
- Nonfiction;
- Poetry;
- Directories;
- Catalogs;
- Textbooks;
- Reference works;
- Advertising copy;
- Compilations of information;
- Computer programs; and
- Databases.
What Is a Copyright?
Copyrights provide owners with the rights to prevent other individuals or parties from using originally authorized works. These laws are similar to trademark laws.
Trademark laws provide protections for logos and brand names. Patent laws, another category of intellectual property law, provide protections for inventions.
An item or work that is copyrighted should be an original. Under federal copyright laws, a copyright provides its owner with numerous rights, including:
- The right to reproduce the copyrighted work;
- The right to distribute a copy of a work that is copyrighted for sale to members of the public;
- The right to perform the copyrighted work;
- The rights to produce a license that are derived from other copyright materials; and
- Licensing rights to make, or manufacture, a product.
What Is Copyright Protection?
Once an individual has fixed their original work into a tangible medium of expression, federal copyright laws provide them with a copyright. The individual must have independently created the work, as noted above.
The work must be put in a sufficiently permanent medium that allows other individuals to do any of the following with the work:
- Reproduce;
- View; or
- Communicate.
Copyright protections are also provided if the author fixes the work in a tangible form. Once a work has been given copyright protection, the creator or inventor can decide what parties are allowed to use the work as well as for what purposes the work may be used.
Once a work has copyright protections, no other party can use it without permission from the creator.
What Is Infringement?
Under intellectual property laws, infringement is the unauthorized use or protected materials. Typically, this refers to cases of copyright infringement, for example, when artistic works, music, or literary works are used without the creator’s approval.
Infringement, however, may also involve other categories of intellectual property law, such as patents and trademarks. In recent years, domain name infringement has also become a more common dispute.
Proving infringement typically requires the owner to have a valid patent, trademark, or copyright in place. It also requires evidence that the defendant used the invention, artistic work, or material without notifying the individual with ownership rights in the material.
What Is Copyright Infringement?
Pursuant to intellectual property laws, a copyright provides an author of a new and creative work with the exclusive rights to use, distribute, and publish their work.
A copyright prevents other parties from using the author’s work without their permission. Federal copyright laws also provide authors with many exclusive rights, including the rights to:
- Reproduce the copyrighted work as wanted;
- Distribute copies of the copyrighted work for sale to members of the public; and
- Perform the copyrighted work as desired.
Some examples of works that are copyrightable include, but are not limited to:
- Books;
- Poems;
- Song lyrics, musical compositions, and sound recordings;
- Plays, motion pictures, and scripts;
- Paintings and drawings;
- Choreography;
- Sculptures;
- Software;
- Broadcasts; and
- Websites and online content.
Copyright infringement arises when a party or individual violates a copyright owner’s exclusive rights by using their work without obtaining the express consent of the owner or author.
How Is Literary Work Infringement Proven?
In general, to prove literary work infringement, two things must be shown, including:
- Access: When proof of access shows a similarity between time and space between defendant’s contact with plaintiff’s work and the creation of the alleged infringement; and
- Similarity: The ways the works are similar. This, however, may be overcome using a public domain defense.
There are, however, numerous other difficulties involved in proving infringement of a literary work than other types of infringement, for example, with a musical work. Many different elements of a literary work may be repeated from one literary work to another and, in addition, may be common to numerous literary works.
Courts have commonly struggled with distinguishing between common elements and elements that are original or unique to an author. This is, in part, because courts have to distinguish between the idea of the author and the form of expression for their idea.
This is referred to as the idea-expression dichotomy.
What Is the Idea-Expression Dichotomy?
Authors may use basic literary elements as well as those constitute mere ideas, as they are not protected by law. The greater the detail that an individual author creates in the expression of their ideas, the more likely it will be protected under the law.
Is There Any Way to Determine When an Idea Becomes an Expression of the Idea?
The Nichols v. Universal Pictures Corp. (1930) case provides a test from Judge Learned Hand, called the abstractions test, that identifies a range within which the development of characters and sequence lie. The judge noted that “the less developed the characters, the less they can be copyrighted.”
Is the Title of a Literary Work Open to an Infringement Claim?
Typically, the title of a literary property is not subject to copyright protections. The title may be more adequately protected under legal theories such as:
How Can a Copyright Attorney Help with a Copyright Issue?
Copyright attorneys can help individuals with many different types of copyright issues. Copyright lawyers may be hired by businesses or individuals to:
- Give advice regarding copyright laws;
- Settle a copyright dispute;
- Answer specific legal questions; or
- Ensure that the individual or entity is in compliance with the law.
Copyright lawyers can also inform their clients when their work may not be original enough to claim a copyright for it. Attorneys can also help individuals prove lost sales that result from instances of infringement.
A copyright lawyer can also determine whether or not an individual’s work falls under the complicated copyright regulation called the fair use doctrine. This fair use doctrine is based on the concept that members of the public may use portions of a copyrighted material for the purposes of commentary or criticism.
Should I Consult a Lawyer?
The regulations and deadlines that are required for copyright registration are strict and detailed. If you have any issues, questions, or concerns related to copyrights or copyright infringement, it is important to consult with a copyright lawyer who can help you throughout the process.
If you have a copyright infringement issue, your lawyer can help you complete the strict and often difficult procedural requirements for these types of cases and present the best case possible to the court on your behalf.
