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Copyright Information

As an artist you need to protect your ideas and intellectual property by making use of U.S. copyright and trademark laws. Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, web site and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following: To reproduce the work in copies or phonorecords;

To prepare derivative works based upon the work;

To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

In the case of sound recordings, to perform the work publicly by means of a digital audio transmission. It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright (this is copyright infringement). These rights, however, are not unlimited in scope. The Copyright Act establishes limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use”. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.

DO I NEED A COPYRIGHT? DO I NEED TO CONTACT A COPYRIGHT ATTORNEY? While it is wise to contact an Attorney for Intellectual Property Consulting, there are things you can do at the outset to aid in copyright protection. Registration with the Copyright Office is not required for a dramatic work to be protected. However, IT IS HIGHLY RECOMMENDED. Copyright protection occurs once the work is “fixed in a tangible medium”. This means, in general, when the work is recorded or written down. Some authors mail a copy of their work to themselves, just as some screenwriters file their works with the Writer’s Guild of America. This practice (known as “poor man’s copyright”) merely establishes that, as of a certain date (the postmark or WGA filing date), the work existed, thus predating any subsequent infringing work. It does not create protection (because protection already existed when the work was written down) and, more importantly, does not provide the benefits that a formal copyright registration does.

WHY SHOULD I FILE A COPYRIGHT? In order to sue for damages on copyright infringement, you must be able to prove that you have a valid copyright. This is most easily done by providing the copyright certificate from the Copyright Office. This should be done as early as possible as copyrights generally take time to be issued and receive a copyright certificate. If you feel that your copyright has been violated, then decide to apply for a copyright registration, this can take almost a year and delay any damages. Contacting a Copyright Attorney for Intellectual Property Consulting is recommended.

Also, early registration provides certain advantages. Early registration applies if a copyright is filed prior to infringement or within 90 days of the first publication of your work. If you can prove early registration and infringement you may be awarded statutory damages (as well as attorney’s fees and the costs of any litigation). You can always consult with a copyright attorney to discuss your specific situation, and for other intellectual property or copyright and trademark litigation issues.

SHOULD I LABEL MY WORK WITH ©, Copyright or Copr.?
The answer is short is YES. Use of the ©, Copyright or Copr. marks provides notice and may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright is on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s defense based on innocent infringement in mitigation of actual or statutory damages (except as provided in limited circumstance covered by the copyright law). Innocent infringement occurs when the infringer did not realize that the work was protected.

WHAT IS INFRINGEMENT?
Copyright infringement occurs when a third party violates your exclusive right to allow reproduction of your work; creation of derivative works based upon your work (that is, adaptations for books, theater, film, and TV, as well as translations); distribution of copies of your work; public performances of your work; and public displays of your work. Copyright infringement may also occur where a party exceeds the grant of rights that you have given them.

WHAT ELEMENTS NEED TO BE SHOWN TO PROVE COPYRIGHT INFRINGEMENT?
1. Ownership of a valid copyright.
2. Copying by the Defendant. Proven by (1) access and (2) “probative similarity” which means there is a minimal level of similarity between the two works that might imply the defendant had copied plaintiff’s work.
3. Their copying created a “substantially similar” work. In making this determination the court will evaluate how much of the protected elements of your work the defendant has taken and how much of the defendant’s work those elements represent.
WHAT DEFENSES ARE AVAILABLE TO A DEFENDANT? The following are a few:
1. Fair Use. In certain circumstances a defendant may take you work, such as for parody, commentary or criticism.
2. Independent Creation. The defendant may claim they did not copy the work, but rather independently created said work.
WHAT REMEDIES ARE AVAILABLE TO A COPYRIGHT OWNER?
1. Preliminary injunction. Plaintiff may be able to prevent defendant from using work prior to trial.
2. Impoundment of Destruction of Infringing Articles.
3. Permanent Injunction.
4. Money Damages.