Understanding The Nuanced and Often Misunderstood Areas of Copyright Law

Copyright may seem simple, but the reality is, Copyright is a complex, nuanced and often misunderstood area of the law. Especially, when it comes to copyrights in the entertainment industry. Here’s some general information on Copyrights you might find of interest.

What is Copyright?
Copyright is a set of exclusive rights granted to the author or creator of original work, including the right to copy, distribute and adapt the work.

I have a great idea. Can I Copyright my idea?
Copyright does not protect ideas, only their tangible expression. Your work must be written, recorded, sculpted, painted, etc. In order to be afforded Copyright protection. Mere ideas are not protectable under copyright law. However, you might be able to protect an idea by using a non-disclosure agreement (NDA) or under unfair competition laws.

Do I need to register my Copyright with the U.S. Copyright Office?
Copyright rights attach upon fixation of your work in a tangible form, and you do not need to be registered. However, registration with the Copyright Office puts a Copyright holder in a better position in the event of litigation.

One of the main reasons to register is that registration is necessary to obtain statutory damages in a Copyright infringement case. Statutory damages are available as an alternative to actual damages and disgorgement of profits. This is often preferable if actual damages are either too small, too difficult to prove, or both. Statutory damages are awarded by the court within the range of $750 to $150,000 per infringing act. This can be lowered if the infringement is deemed inadvertent or increased if the infringement is willful.

Also, the Copyright Act permits courts to award costs against either party and to award reasonable attorney fees to the prevailing party. If your work is not registered, you cannot be awarded costs or attorney fees.

How do I register my Copyright with the U.S. Copyright Office?
Registration of Copyright refers to the act of registering the work with the United States Copyright Office. The Copyright Act provides that the owner of a Copyright in a published or unpublished work may, at any time during the life of the copyright, register the work with the Copyright Office. The purpose of the registration provisions is to create as comprehensive a record of U.S. copyright claims as is possible. To register, and assuming you are the rights holder or acting on their behalf, you must complete an application form and send it, along with the filing fee and copies of the work, to the Copyright Office. This can be a simple process, but often times Copyright holders prefer to have the form filed by their attorney.

When does my Copyright enter the Public Domain?
Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time. Once that time has elapsed the work is said to enter the Public Domain. Public Domain works are available for use by anyone.

Works created during or after 1978 are extended Copyright protection for a term ending 70 years after the death of the author of the work. If the work was a Work for Hire then Copyright term is 120 years after creation or 95 years after publication, whichever is shorter. If you are not familiar with the Work for Hire concept; a Work for Hire is essentially a work created for someone else or a work created by an employee and owned by the employer. There are nuances to the Work for Hire doctrine which we will provide further information on in future articles.

What is “Fair Use”?
In order to use someone else’s Copyright (e.g. record a song, perform a play or make prints of a photograph, etc.) you are required to get permission from the Copyright owner or rights holder. This can be done via a license, permanent transfer or assignment of the Copyright.

“Fair Use” of a Copyright does not require that you get permission from the Copyright holder. Rather, Fair Use is a limitation and exception to the exclusive right granted under the Copyright Act, allowing limited use of Copyright protected work without requiring permission from the Copyright holder. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. One of the key factors in determining Fair Use surrounds how much of the Copyright protected work is being used. The rule of thumb: A Fair Use claimant can only use that which is necessary to criticize, teach or report on the copyrighted work. Thus, Fair Use doesn’t always allow for use of the entire work.

If you have any other questions or concerns about Copyright related issues, feel free to send ARC Law Group a message at info@arclg.com.

You understand and agree that use of this article does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided on this blog is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney of your choosing about a specific legal problem.

About the author

Mark A. Pearson is a founding partner at ARC Law Group and always finds time to a sensible and Balanced Breakfast. He's lectured extensively on Copyright matters as they relate to the music, film and television industries. You can find out about workshops and events Mark will be attending here: http://arclg.com/events/

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