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Copyright

Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Widerman & Malek
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A copyright is a form of intellectual property protection that granted by the federal government. A copyright, however, is not “granted” in the same manner in which a patent is granted. A patent will be issued only after a patent application has been filed with and approved by the United States Patent and Trademark Office. To the contrary, a copyright is provided to the authors of “original works of authorship,” regardless of whether the work has been published and regardless of whether the work has been registered. Unlike patents, copyrights come into being at the moment an original work is fixed in a tangible medium of expression. While there are significant advantages to federal registration of a copyright, no registration is required in order for a copyright to exist. Likewise, no registration is required for an author to begin using the familiar copyright symbol — ©, but given the cost and benefit you should absolutely obtain a registered copyright.

Despite the fact that originality is indeed the so-called “sine qua non” of a copyright, all works that are original are not necessarily entitled to copyright protection. Copyright protection can exist only in original works of authorship if the work is also fixed in a tangible medium of expression from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship for which copyright protection are available include the following categories or works : (1) literary works ; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works ; (6) motion pictures and other audiovisual works ; (7) sound recordings; and (8) architectural works. In addition to these categories specifically enumerated in the Copyright Act, the subject matter of copyright also includes compilations and derivative works. The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in either a compilation or derivative work is independent of, and does not affect or enlarge the scope, duration, ownership, or existence of, any copyright protection enjoyed by the author of the preexisting material. Copyright protection for a work employing preexisting material does not extend to any part of the work in which such material has been used unlawfully.

Copyright protection, however, does not and cannot exist for an idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described or embodied. This is true because a copyright protects only the form of expression rather than the subject matter of the writing. It is simply not the function of the copyright laws to protect anything other than original expression. Ideas are not protected by copyright law because protecting an idea would take the idea out of the public domain and would prevent others from using the idea to create their own independent and original works of authorship. Such an occurrence would frustrate the very purpose of copyright law, which is to stimulate creativity and provide the appropriate incentives to foster the creation of more artistic works.

The principle that expression is copyrightable and ideas are not copyrightable is sometimes difficult to apply. Courts consider what is called the idea/expression dichotomy to help focus on whether the idea is capable of various modes of expression, or whether protection of the expression would ipso facto protect the idea, which cannot be tolerated. The idea/expression dichotomy is a necessary part of copyright law because clinging to the rule that ideas are not copyrightable becomes difficult when the idea and the form of the expression necessarily coincide. If there is only a limited number of ways in which to express something the expression is said to merge with the idea and neither are copyrightable. In order to determine if the idea and expression have merged it is necessary to first identify the idea that the work seeks to express, and then determine whether the idea can be distinguished from the author’s expression. If the idea and expression are inseparable, then the merger doctrine applies and the expression is not entitled to copyright protection because to grant copyright protection would be tantamount to granting protection to the idea. If, however, the idea can be divorced from and exist wholly outside the expression, the expression is deserving of copyright protection, provided of course that the requirements of originality and fixation have been met.

For example, a novel about World War II could be copyrighted, but this would only prevent others from copying the novel; it would not prevent others from writing an original novel about World War II. Similarly, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. To prevent the making and using of the machine one would have to obtain patent protection. Likewise, a copyright would not prevent an individual from using a discovery or principle or law of nature. If such procedures, processes, systems, methods, concepts, principles, discoveries or inventions are to be protected as intellectual property it is patent law that must proved the protection, not the copyright laws.

The owner of a copyright has what is best referred to as a bundle of exclusive rights. The exclusive rights of the copyright owner allow the owner to do and/or to authorize any of the following: (1) reproduction of the copyrighted work in copies or phonorecords; (2) preparation of derivative works based upon the copyrighted work; (3) distribution of copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) 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, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

The fact that the copyright owner enjoys “exclusive rights” should not be understood to mean that only the copyright owner may engage in the listed activities (i.e., copying, distributing, performing, etc.). The right of the copyright owner is exclusive in nature, but far from absolute. This is true because of what is called “fair use.” The Copyright Act allows for copyright works to be used, and for such use not to be considered infringement, for purposes such as criticism, comment, news reporting, teaching, scholarship, and/or research, so long as the work is “fairly used.” In determining whether the use in any particular case is a fair use Courts must consider four factors: (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.

About the Author

Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)
Widerman & Malek

B.S. in Electrical Engineering, Rutgers University
J.D., Franklin Pierce Law Center
L.L.M. in Intellectual Property, Franklin Pierce Law Center

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Gene is a US Patent Attorney and the founder of IPWatchdog.com. Known by many as “The IPWatchdog.” Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had millions of unique visitors.Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.