Intellectual Property Primer

By: Judith Silver, Esq., Published: 2003-04-28, Parent Category: Business & Legal Issues

Copyright

Origins

According to the United Kingdom government, the Statute of Anne was the first statute to legally address copyright during the eighteen century. In the United States, the first copyright law was passed in 1790.

When Do You Get a Copyright?

Upon creation (in a fixed form), a creator (author) has a copyright in the work.

What's Required to Get a Copyright?

You do not need to apply or register to have a copyright; you receive copyright protection when you create the work. However, registering your work expands your protections and sometimes can be done without disclosing the entire work. Depositing a copy of your work with the Copyright Office within 90 days of creation also protects your work by providing a legal record of the creation date and allowing others to have notice of your ownership rights.

The following categories of works have copyright protection:

literary works
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works

Software, sometimes the GUI, and webpages have copyright protection.

The following do not have copyright protection:

Works that have not been fixed in a tangible form of expression, (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
Works without enough "originality" (creativity) to merit copyright protection: titles, names, short phrases, and slogans; familiar symbols or designs; font design; ingredients or contents; facts; blank forms, etc. As there is great tension here between granting incentive and financial reward when something is worthy, but not granting it to things so basic and commonly used that everyone would be forced to pay, the law is somewhat unclear in this area.
Ideas or concepts. Copyright protects the expression of the idea, but not the ideas themselves. This is easier to understand if you remember the goals of our Founding Fathers - to reward creations, but protect the free flow of ideas and information. For example (*this is Plato's explanation of the concept long before copyright), if I ask you what a chair is, you get a picture in your head; the picture I get in my head is different; the picture Buffy gets in her head is different. These are the "ideas" of what a chair is. However, if you draw the chair in your head or use words to describe the chair, that the "expression" of the idea and that is protected by copyright.

What Do You Have When You Have a Copyright and Is There Any Risk?

The 1976 Copyright Act gives the owner of a copyright the exclusive right

to copy the work
to modify the work (create "derivative works")
to distribute the work
to perform the work publicly
to display the work publicly

Length of copyright protection can be complex, but generally lasts 70 years after the death of the creator.

As registration of copyright is not required for protection and some registrations can be done without full disclosure of the work, persons that want to keep their creation secret often opt to rely on copyright protection for their work. If registration is desired, it is relatively simple and inexpensive.

The Public Domain

The "Public Domain" refers to created materials which is either do not by law get copyright protection or their protection under the law has lapsed. By definition, materials in the public domain do not have copyright protections and thus you do not need the owner's permission to use these materials. Contrary to the wording, however, whether materials are in public has no relationship to whether they fall into the Public Domain. This mistaken notion has somehow led many to believe that everything on the Internet is in public and therefore in the Public Domain and thus freely usable without permission. This is completely false.