What is copyright?

A copyright is the exclusive right of the creator of an original to control its use and distribution. Copyright applies to creative works. Copyright protects expression of ideas, not the underlying ideas. The creator's rights under copyright are not absolute. Copyright grants the holder the exclusive rights to:

  • Make or sell copies or reproductions of the work

  • Import or export the work, including copies

  • Create adaptations of a work, called "derivative works"

  • Publicly perform or display the work

  • Transfer or license any of these rights to another

The law allows some uses without permission (i.e., mandatory licenses, for example, allowing anyone to perform or record song) and exceptions like fair use.

How do I get a copyright?

Copyright comes into existence at the moment a creative work is "fixed" in a tangible form without any further action required. However, a copyright may be registered, which grants additional benefits. Registration, or an application for registration, is required to enforce a copyright in court, obtain an injunction, and recover financial losses. In order to insure complete recovery of financial losses, registration should be filed within at least three months of completing a work. Registration also acts a prima facie evidence of a valid copyright and allows the copyright owner to seek statutory damages, which may exceed provable financial harm, and attorney fees.

Do I need to put a copyright notice on my work?

Up until 1989, failure to include a copyright notice could waive all rights. Today, no notice is required. However, inclusion of notice is recommended in order to maximize potential damages in a lawsuit and to preclude "innocent infringement" defense.

What is Fair Use?

Fair Use is an exception to the exclusive rights of a copyright owner allowing another to use all or a portion of a work in their own work. Fair Use is not precisely defined. Rather, a four-part balancing test is used to determine whether the exception applies:

  1. the purpose and character of one's use,

  2. the nature of the copyrighted work,

  3. what amount and proportion of the whole work was taken, and

  4. the effect of the use upon the potential market for or value of the copyrighted work.

No single factor is dispositive. Whether or not fair use applies to any specific use is very fact intensive requiring detailed examination of the circumstances and applicable judicial decisions.