Copyrights

Theoretically, you own a copyright in something as soon as you express it in a fixed format.

Under U.S. Copyright Laws, a person has a “common law” copyright to a creative expression once it has been expressed in a “fixed medium.” However,  should a person require a copyright registration because he/she wishes to secure protection prior to marketing the song, transcript, computer software, or any other such creative expression, The Kotzker Law Group will be able to complete the task. Whether your creative expression is a literary work, visual art, performing art, sound recording, web design, or anything in between, The Kotzker Law Group offers exceptional copyright registration services.

Advantages of Copyright Registration: A registered copyright evidences the date of creation and places others on notice as to your rights to the creation. A copyright filed today will last the creator’s lifetime plus 70 years, of if a “work for hire,” the copyright lasts 95 years from publication or 120 years from creation, whichever is shorter.

Let The Kotzker Law Group record your copyright so you can enforce it.

Mr. Kotzker is particularly skilled in obtaining copyrights for computer programs, including computer software, web page designs, and screen displays, as well as submitting revisions to previously published materials.  Additionally, Mr. Kotzker has prepared extensive copyright licensing contracts and can tailor a contract to your particular needs.

For those in the creative field, United States copyright applications should be submitted at least every three (3) months in order to preserve rights to new creations. For instance, if a web page is updated with new graphics or text, it is advisable to submit a derivative work copyright application within three (3) months of those updates. Without such filings, you may be deprived of your statutory rights. These rights include statutory damages (up to $150,000 for each intentional infringement of some types of copyrighted material) and attorneys’ fees. Most importantly, you must have a copyright registration in order to pursue a legal claim and such a registration shifts the burden to the opposing party for showing ownership of a disputed creation.

Maintain control of your work.

If you do not protect your creation with a registered copyright and someone else passes off the work as their own, the burden of proof falls on you to show you created the work or that you were the first person to create a work. The simplest way to protect your rights is to register your work with the Copyright Office of the Library of Congress. Once registered, you own the rights to the original expression, the rights to all copies of the expression, the rights to all derivative works based on the original work, the rights to all distribution of the copies, the rights to perform the work publicly (in the case of musical, dramatic, choreographic works, motion pictures and audiovisual works), and the rights to digital audio transmission (in the case of sound recordings).

In order to obtain the maximum benefits from the Copyright statute, you must file a copyright application prior to publication (offering the work for sale, or by rental, or by lending it to the public) or within three (3) months of publication.

We can make it easy for you.

The Kotzker Law Group will advise you as to the best methods for protecting your creative expression, review all materials and obtain all pertinent information prior to preparing and submitting your copyright application.
Once a copyright is obtained, The Kotzker Law Group can assist in protecting your rights, as well as preparing agreements allowing others to use or market your expression. Copyright licensing involves some of the most creative and detailed licensing contract drafting, and The Kotzker Law Group can suit a contract to your needs.
A United States copyright does not automatically give you “international copyright” whereby your expression is protected throughout the world. There are many countries that offer protection to foreign works through international copyright treaties and conventions. The Kotzker Law Group can provide you with invaluable advice in choosing the proper markets for your copyrighted works and getting you the most protection available throughout the world.

What Copyright Protects

What can be protected by copyright law?

A copyright protects you from having others reproduce your original work, whether or not it is published. It applies to all kinds of original expression, including the following: poetry, movies, plays, musicals, music, lyrics, dances, pantomimes, computer software, maps, architecture, art, sculpture, photography, video recordings of any kind, sound recordings of any kind, original works of any kind that appear on your website, free software and freeware.

Even your favorite recipes can be copyrighted as long as they are part of a “literary expression” that includes directions and explanations, or when the recipes are compiled in a book.

The key words are “original” and “expression.” An expression means a written, recorded or otherwise tangible representation of the idea. For instance, if a professor stands in front of a class and gives a presentation, that is not copyrighted. But if that presentation is recorded in some way, that recording could be copyrighted. If a dancer performs before an audience, that is also not copyrighted. But the written notes, directions and choreography that went into producing that dance can be copyrighted, as well as any recording of that dance, including photographs.

Who has the right to copyright protection?

Only the author or creator of the work (a photographer or painter, for instance) has the right to copyright the work, with the following exceptions:

An “assignee” or heir of the creator can claim copyright. An assignee is someone to whom the creator legally gave the right to copyright the original expression. Similarly, a person or company can claim a copyright in a work produced by another if that work was done as part of a contract or written agreement in which the creator transferred those rights to the person or company paying for it. This is called a “work made for hire.” One of the most common examples is a story or photograph created by a freelance journalist who is paid to produce the work for a newspaper or journal.

Likewise, an employer can claim copyright if the expression was created by an employee in the course of his or her employment.

When can websites be copyrighted?

Whether or not material on your computer, including your databases, blogs, journals and web page, can be copyrighted is a complex issue.

In general, if you have original work on the web page, you can copyright it, even if the page itself cannot be copyrighted. However, the copyrightable content must be identified as such and received in the U.S. Copyright Office, along with an application form and filing fees. The application cannot include already published material or material in the public domain that already exists on the web page.

Material is in the public domain when it becomes part of the cultural heritage by virtue of age and use, such as the writings of Shakespeare or the drawings of Leonardo Da Vinci; when someone allows their work to enter the public domain; when a copyright expires; or in those cases in which copyright law does not apply, such as mathematical formulae or works created by the United States Government.

When a web page is updated or changed, a new copyright application must be filed to protect any additional original expressions on that site unless it is a serial, such as a regularly published newsletter. A separate application and fee apply to serials.

You cannot copyright your domain name, but other avenues exist to try and protect it.

What cannot be protected by copyright?

A copyright does NOT protect ideas, systems or methods of operation, but it may protect the books, documents and other items in which these things appear. It also does not protect a slogan or logo. Some of these things may be protected by trademark or patent law.

Copyright law does not apply to works already in the public domain or works created by the federal government.

Titles, names (including the name of your band) and short phrases are also not copyrighted, nor are familiar symbols or designs, such as a railroad crossing sign, stop sign or cross walk sign. Letters of the alphabet are, clearly, not copyrighted, and neither are any mere variations of those letters. When you create that recipe book, the ingredients are not copyrighted. Remember, the expression must be original.

Advantages of Copyright Registration

Why register a copyright?

A work does not have to be registered with the Copyright Office to be copyrighted. However, registration has benefits that are far greater than the work and expense in filing the registration.

• In the United States, the work’s creator cannot sue for copyright infringement of works created in the U.S. unless the works are registered with the Copyright Office. If a lawsuit happens and the creator needs to register in a hurry, doing so will cost more money.
  When a work is registered with the Copyright Office, a public record is made of the claim. With the public record, the person who registers is legally presumed to have the copyright on the work and anyone challenging that will have to prove otherwise. Without that public record, the burden of proof shifts and the author or creator has to prove that she or he owns the copyrighted work.
• If the author or creator registers the work with the Copyright Office within three months after publication or before someone infringes on the work, the author or creator can ask for statutory damages and attorneys’ fees if the matter goes to court, in addition to any other damages from the use of the work. The author or creator may want statutory damages when he or she can’t prove actual damages (how much the infringement actually cost them) or when the damages are relatively small.
• The Certificate of Registration is prima facie evidence that the work is original and owned by the person who registered it. This evidence is important in getting a court injunction to stop another person from producing, reproducing or distributing material that infringes on the creator’s rights. The author must register with the Copyright Office within five years from the date of publication to protect this right.
• Registration could save the author or creator the expense of having to go to court. When someone challenges the copyright, the fact that it’s registered creates leverage to give the one who registered more bargaining power. When that happens, infringement issues may be settled out of court, saving everyone time and money.
• A registered copyright lets the author or creator send a more forceful “cease and desist” letter to the person or entity infringing that copyright. The owner of the copyright knows that he or she can file a lawsuit and that the copyright laws lean in his or her favor. As in everything else in life, knowledge is power.

The author or owner of the work can also file the copyright with the U.S. Customs Service when someone else tries to import, from outside the United States, material that infringes on the copyright.

Copyright registration may be made at any time within the life of the copyright.

Some authors or creators of copyrightable work complain that they don’t have the time or money to file for a registered copyright, despite the time, money and energy that often went into producing the work in the first place. Failing to register for a copyright will cost them more money if their work is “stolen” and may prevent them from seeking certain legal avenues to protect themselves in the future.

Can anyone use copyrighted material?

The answer is yes. Under the Fair Use exception, certain individuals may use copyrighted material for certain things without asking permission or paying the owner of the copyright.

“Fair Use” is one of those ideas that grew out of the court system and is sometimes hard to understand and even harder to enforce. It is currently part of copyright law. Title 17, Chapter 1, Section 107 of the U.S. Code, states that “fair use” of copyrighted material is permitted “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research without infringing on copyright.”

According to the code, “Fair Use” is determined, in part, as follows:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. 
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Is your business facing a situation in which someone has stolen or is using your intellectual property? Would you like to have an ironclad policy regarding these issues to minimize the chances of a mishap at a later date? The Kotzker Law Group can help.

Preventative measures can be put into place with regard to vendors and licensing agreements, minimizing the potential for protracted legal matters. Our attorneys are also able to advise you as to the necessary steps involved with applying for copyrights and trademarks to protect your property.

If yours is a case in which someone has already misused or misappropriated your intellectual property, we can help with the process of retrieving that property and ensuring that the individual or business is held accountable.