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- Circular 1: Copyright Basics
-
- On January 1, 1978, the Copyright Act of 1976 (title 17 of
- the United States Code) came into effect. This general revision
- of the copyright law of the United States, the first such
- revision since 1909, made important changes in our copyright
- system and superseded the previous Federal copyright statute.
-
- WHAT COPYRIGHT IS
-
- 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, and certain other intellectual works. This
- protection is available to both published and unpublished works.
- Section 106 of the Copyright Act generally gives the owner of
- copyright the exclusive right to do and to authorize others to do
- the following:
-
- - To reproduce the copyrighted work in copies or phonorecords;
-
- - To prepare derivative work based upon the copyrighted work;
-
- - To distribute copies or phonorecords of the copyrighted work
- to the public by sales or other transfer of ownership, or by
- rental, lease, or lending;
-
- - To perform the copyrighted work publicly, in the case of
- literary, musical, dramatic, and choreographic works,
- pantomimes, and motion picture and other audiovisual works
- and
-
- - 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.
-
- It is illegal for anyone to violate any of the rights
- provided to the owner of copyright by the Act. These rights,
- however, are not unlimited in scope. Sections 107 through 118 of
- the Copyright Act establish limitations on these rights. In some
- cases, these limitations are specified exemptions from copyright
- liability. One major limitation is the doctrine of "fair use,"
- which is given a statutory basis by section 107 of the Act. 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. For further information about
- limitations of any of these rights, consult the Copyright Act or
- write to the Copyright Office.
-
- WHO CAN CLAIM COPYRIGHT
-
- Copyright protection subsists from the time the work is
- created in fixed form; that is, it is an incident of the process
- of authorship. The copyright in the work of authorship
- immediately becomes the property of the author who created it.
- Only the author or those deriving their rights through the author
- can rightfully claim copyright.
-
- In the case of works made for hire, the employer and not the
- employee is presumptively considered the author. Section 101 of
- the copyright statute defines a "work made for hire" as:
-
- 1. a work prepared by an employee within the scope of his or
- her employment; or
-
- 2. a work specially ordered or commissioned for use as a
- contribution to a collective work, as a part of a motion
- picture or other audiovisual work, as a translation, as a
- supplementary work, as a compilation, as an instructional
- text, as a test, as answer material for a test, or as an
- atlas, if the parties expressly agree in a written
- instrument signed by them that the work shall be
- considered a work made for hire . . . .
-
-
- The authors of a joint work are co-owners of the copyright
- in the work, unless there is an agreement to the contrary.
-
- Copyright in each separate contribution to a periodical or
- other collective work is distinct from copyright in the
- collective work as a whole and vests initially with the author of
- the contribution.
-
- Two General Principles
-
- Mere ownership of a book, manuscript, painting, or any other
- copy or phonorecord does not give the possessor the copyright.
- The law provides that transfer of ownership of any
- material object that embodies a protected work does not
- of itself convey any rights in the copyright.
-
- - Minors may claim copyright, but state laws may regulate the
- business dealings involving copyrights owned by minors.
- For information on relevant state laws, consult an attorney.
-
- COPYRIGHT AND NATIONAL ORIGIN OF THE WORK
-
- Copyright protection is available for all unpublished works,
- regardless of the nationality or domicile of the author.
-
- Published works are eligible for copyright protection in the
- United States if any one of the following conditions is met:
-
- - On the date of the first publication, one or more of the
- authors is a national or domiciliary of the United States
- or is a national, domiciliary, or sovereign authority of
- a foreign nation that is a party to a copyright treaty to
- which the United States is also a party, or is a stateless
- person wherever that person may be domiciled; or
-
- - The work is first published in the United States or in a
- foreign nation that, on the date of first publication, is
- a party to the Universal Copyright Convention; or the work
- comes within the scope of a Presidential proclamation.
-
-
- THE MANUFACTURING CLAUSE
-
- The manufacturing clause in the copyright law, section 601
- of the 1976 Copyright Act (title 17, U.S. Code), expired July 1,
- 1986.
-
- WHAT WORKS ARE PROTECTED
-
- Copyright protection exists for "original works of
- authorship" when they become fixed in a tangible form of
- expression. The fixation does not need to be directly
- perceptible, so long as it may be communicated with the aid of a
- machine or device. Copyrightable works include the following
- categories:
-
- 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; and
-
- 7. sound recordings.
-
- This list is illustrative and is not meant to exhaust the
- categories of copyrightable works. These categories should be
- viewed quite broadly: for example, computer programs and most
- "compilations" are registrable as "literary works"; maps and
- architectural blueprints are registrable as "pictorial, graphic,
- and sculptural works."
-
- WHAT IS NOT PROTECTED BY COPYRIGHT
-
- Several categories of material are generally not eligible
- for statutory copyright protection. These include among others:
-
- - Works that have not been fixed in a tangible form of
- expression. For example, choreographic works which have not been
- notated or recorded, or improvisational speeches or performances
- that have not been written or recorded.
-
- - Titles, names, short phrases, and slogans; familiar symbols
- or designs; mere variations of typographic ornamentation,
- lettering, or coloring; mere listings of ingredients or contents.
-
-
- - Ideas, procedures, methods, systems, processes, concepts,
- principles, discoveries, or devices, as distinguished from a
- description, explanation, or illustration.
-
- Works consisting entirely of information that is common
- property and containing no original authorship. For example,
- standard calendars, height and weight charts, tape measures and
- rules, and lists or tables taken from public documents or other
- common sources.
-
- HOW TO SECURE A COPYRIGHT
-
- Copyright Secured Automatically Upon Creation
-
- The way in which copyright protection is secured under the
- present law is frequently misunderstood. No publication or
- registration or other action in the Copyright Office is required
- to secure copyright (see NOTE below). There are, however,
- certain definite advantages to registration (see below).
-
- Under the present law, copyright is secured automatically
- when the work is created, and a work is "created" when it is
- fixed in a copy or phonorecord for the first time. In general,
- "copies" are material objects from which a work can be read or
- visually perceived either directly or with the aid of a machine
- or device, such as books, manuscripts, sheet music, film,
- videotape, or microfilm. "Phonorecords" are material objects
- embodying fixations of sounds (excluding, by statutory
- definition, motion picture soundtracks), such as audio tapes and
- phonograph disks. Thus, for example, a song (the "work") can be
- fixed in sheet music ("copies") or in phonograph disks
- ("phonorecords"), or both.
-
- If a work is prepared over a period of time, the part of the
- work existing in fixed form on a particular date constitutes the
- created work as of that date.
-
- PUBLICATION
-
- Publication is no longer the key to obtaining statutory
- copyright as it was under the Copyright Act of 1909. However,
- publication remains important to copyright owners.
-
- The Copyright Act defines publication as follows:
-
- "Publication" is the distribution of copies or phonorecords
- of a work to the public by sales or other transfer of ownership,
- or by rental, lease, or lending. The offering to distribute
- copies or phonorecords to a group of persons for purposes of
- further distribution, public performance, or public display,
- constitutes publication. A public performance or display of a
- work does not of itself constitute publication.
- NOTE: Before 1978, statutory copyright was generally secured by
- the act of publication with notice of copyright, assuming
- compliance with all other relevant statutory conditions. Works
- in the public domain on January 1, 1978 (for example, works
- published without satisfying all conditions for securing
- statutory copyright under the Copyright Act of 1909) remain in
- the public domain on the current Act.
-
- Statutory copyright could also be secured before 1978 by the
- act of registration in the case of certain unpublished works and
- work eligible for ad interim copyright. The current Act
- automatically extends to full term (section 304 sets the term)
- copyright for all works in which ad interim copyright was
- subsisting or was capable of being secured on December 31, 1977.
-
- A further discussion of the definition of "publication" can
- be found in the legislative history of the Act. The legislative
- reports define "to the public" as distribution to persons under
- no explicit or implicit restrictions with respect to disclosure
- of the contents. The reports state that the definition makes it
- clear that the sale of phonorecords constitutes publication of
- the underlying work, for example, the musical, dramatic, or
- literary work embodied in a phonorecord. The reports also state
- that it is clear that any form of dissemination in which the
- material object does not change hands, for example, performances
- or displays on television, is not a publication no matter how
- many people are exposed to the work. However, when copies or
- phonorecords are offered for sale or lease to a group of
- wholesalers, broadcasters, or motion picture theaters,
- publication does take place if the purpose is further
- distribution, public performance, or public display.
-
- Publication is an important concept in the copyright law
- because upon publication, several significant consequences
- follow. Among these are:
-
- - When a work is published, all published copies should bear a
- notice of copyright. (See discussion below of "notice of
- copyright.")
-
- - Works that are published with notice of copyright in the
- United States are subject to mandatory deposit with the Library
- of Congress. (See discussion on page 10 below on "mandatory
- deposit.")
-
- - Publication of a work can affect the limitations on the
- exclusive rights of the copyright owner that are set forth in
- sections 107 through 118 of the law.
-
- - The year of publication is used in determining the duration
- of copyright protection for anonymous and pseudonymous works
- (when the author's identity is not revealed in the records of the
- Copyright Office) and for works made for hire.
-
- Deposit requirements for registration of published works
- differ from those for registration of unpublished works. (See
- discussion on page 9 below of "copyright registration" process.
-
- NOTICE OF COPYRIGHT
-
- When a work is published under the authority of the
- copyright owner, a notice of copyright should be placed on all
- publicly distributed copies and on all publicly distributed
- phonorecords of sound recordings. This notice is required even
- on works published outside the United States. Failure to comply
- with the notice requirement can result in the loss of certain
- additional rights otherwise available to the copyright owner.
-
-
- The use of the copyright notice is the responsibility of the
- copyright owner and does not require advance permission from, or
- registration with, the Copyright Office. As mentioned above, use
- of the notice makes the published works subject to mandatory
- deposit requirements. (See discussion on page 10 on "mandatory
- deposit.")
-
- Form of Notice for Visually Perceptible Copies
-
- The notice for visually perceptible copies should contain
- all of the following three elements:
-
- 1. The symbol C in a circle, or the word "Copyright" or the
- abbreviation "Copr."; and
-
- 2. The year of first publication of the work. In the case of
- compilations or derivative works incorporating previously
- published material, the year date of first publication of
- the compilation or derivative work is sufficient. The year
- date may be omitted where a pictorial, graphic, or sculptural
- work, with accompanying textual matter, if any, is
- reproduced in or on greeting cards, postcards, stationery,
- jewelry, dolls, toys or any useful article; and
-
- 3. The name of the owner of copyright in the work, or an
- abbreviation by which the name can be recognized, or a
- generally known alternative designation of the owner.
-
- Example: Copyright 1987 John Doe
-
- The "C in a circle" notice is required only on "visually
- perceptible copies." Certain kinds of works - - for example,
- musical, dramatic, and literary works - - may be fixed not in
- "copies" but by means of sound in an audio recording. Since
- audio recordings such as audio tapes and phonographs disks are
- "phonorecords" and not "copies," there is no requirement that the
- phonorecord bear a "C in a circle" notice to protect the
- underlying musical, dramatic or literary work that is recorded.
-
- Form of Notice for Phonorecords of Sound Recordings
-
- The copyright notice for phonorecords of sounds recordings
- has somewhat different requirements. The notice appearing on
- phonorecords should contain the following three elements:
-
- - The letter P in a circle; and
-
- - The year of the first publication of the sound recording;
- and
-
- - The name of the owner of copyright in the sound recording,
- or an abbreviation by which the name can be recognized, or a
- generally known alternative designation of the owner. If the
- producer of the sound recording is named on the phonorecord
- labels or containers, and if no other name appears in conjunction
- with the notice, the producer's name shall be considered as part
- of the notice.
-
- Example: P in a circle 1987 A.B.C., Inc.
-
- NOTE: Because of problems that might result in some cases from
- the use of variant forms of the notice, any form of the notice
- other than these given here should not be used without first
- seeking legal advice.
-
- Position of Notice
-
- The notice should be affixed to copies or phonorecords of
- the work in such a manner and location as to "give reasonable
- notice of the claim of copyright." The notice on phonorecords
- may appear on the surface of the phonorecord or on the
- phonorecord label or container, provided the manner of placement
- and location gives reasonable notice of the claim. The three
- elements of the notice should ordinarily appear together on the
- copies or phonorecords. The Copyright Office has issued
- regulations concerning the form and position of the copyright
- notice in the Code of Federal Regulations (37 C.F.R. Part 201).
- For more information, request Circular 3.
-
- Publications Incorporating United States Government Works
-
- Works by the United States Government are not subject to
- copyright protection. Whenever a work is published in copies or
- phonorecords consisting preponderantly of one or more works of
- the United States Government, the notice of copyright shall also
- include a statement that identifies one of the following: those
- portions protected by the copyright law or those portions that
- constitute United States Government material.
- [Note 1]
-
- Unpublished Works
-
- The copyright notice is not required on unpublished works.
- To avoid inadvertent publication without notice, however, it may
- be advisable for the author or other owner of the copyright to
- affix notices, or a statement such as Unpublished Works Copr.1987
- John Doe, to any copies or phonorecords which leave his or her
- control.
-
- Effect of Omission of the Notice or of Error in the Name or Date
-
- Unlike the law in effect before 1978, the new Copyright Act,
- in sections 405 and 406, provides procedures for correcting
- errors and omissions of the copyright notice on works published
- on or after January 1, 1978.
-
- In general, the omission or error does not automatically
- invalidate the copyright in a work if registration for the work
- has been made before or is made within 5 years after the
- publication without notice, and a reasonable effort is made to
- add the notice to all copies or phonorecords that are distributed
- to the public in the United States after the omission has been
- discovered.
-
- HOW LONG COPYRIGHT PROTECTION ENDURES
-
- Works Originally Copyrighted on or After January 1, 1978
-
- A work that is created (fixed in tangible form for the first
- time) on or after January 1, 1978, is automatically protected
- from the moment of its creation, and is ordinarily given a term
- enduring for the author's life, plus an additional 50 years after
- the author's death. In the case of "a joint work prepared by two
- or more authors who did not work for hire," the term lasts for 50
- years after the last surviving author's death. For works made
- for hire, and for anonymous and pseudonymous works (unless the
- author's identity is revealed in Copyright Office records), the
- duration of copyright will be 75 years from publication or 100
- years from creation, whichever is shorter.
-
- Works that were created before the present law came into
- effect, but had neither been published nor registered for
- copyright before January 1, 1978, have been automatically brought
- under the statute and are now given Federal copyright protection.
- The duration of copyright in these works will generally be
- computed in the same way as for works created on or after January
- 1, 1978: the life-plus-50 or 75/100-year terms will apply to
- them as well. However, all works in this category are guaranteed
- at least 25 years of statutory protection.
-
- Works Copyrighted Before January 1. 1978
-
- Under the law in effect before 1978, copyright was secured
- either on the date a work was published, or on the date of
- registration if the work was registered in unpublished form. In
- either case, the copyright endured for a first term of 28 years
- from the date it was secured. During the last (28th) year of the
- first term, the copyright was eligible for renewal. The new
- copyright law has extended the renewal term from 28 to 47 years
- for copyrights that were subsisting on January 1, 1978, making
- these works eligible for a total term of protection of 75 years.
- However, the copyright must be timely renewed to receive the 47-
- year period of added protection. For more detailed information
- on the copyright term, write to the Copyright Office and request
- Circulars 15a and 15t. For information on how to search the
- Copyright Office records concerning the copyright status of a
- work, ask for Circular 22.
-
- TRANSFER OF COPYRIGHT
-
- Any or all of the exclusive rights, or any subdivision of
- those rights, of the copyright owner may be transferred, but the
- transfer of exclusive rights is not valid unless that transfer is
- in writing and signed by the owner of the rights conveyed (or
- such owner's duly authorized agent). Transfer of a right on a
- nonexclusive basis does not require a written agreement.
-
-
- A copyright may also be conveyed by operation of law and may
- be bequeathed by will or pass as personal property by the
- applicable laws of interstate succession.
-
- Copyright is a personal property right, and it is subject to
- the various state laws and regulations that govern the ownership,
- inheritance, or transfer of personal property as well as terms of
- contracts or conduct of business. For information about relevant
- state laws, consult an attorney.
-
- Transfer of copyright are normally made by contract. The
- Copyright Office does not have or supply any forms for such
- transfers. However, the law does provide for the recordation in
- the Copyright Office of transfer of copyright ownership.
- Although recordation is not required to make a valid transfer as
- between the parties, it does provide certain legal advantages and
- may be required to validate the transfer as against third
- parties. For information on recordation of transfers and other
- documents related to copyright, write to the Copyright Office for
- Circular 12.
-
- TERMINATION OF TRANSFERS
-
- Under the previous law, the copyright in a work generally
- reverted to the author, if living, or if the author was not
- living, to other specified beneficiaries, provided a renewal
- claim was registered in the 28th year of the original term. The
- present law drops the renewal feature except for the works al-
- ready in the first term of statutory protection when the present
- law took effect. Instead, the present law generally permits
- termination of a grant of rights after 35 years under certain
- conditions by serving written notice on the transferee within
- specified time limits.
-
- For works already under statutory copyright protection, the
- present law provides a similar right to termination covering the
- newly added years that extended the former maximum term of the
- copyright from 56 to 75 years. For further information, write to
- the Copyright Office for Circulars 15a and 15t.
-