Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets
Victor D. López, J.D., Esq.
Associate Professor of Legal Studies
Frank G. Zarb School of Business
©2011 by Victor D. López
No portion of this copyrighted book may be copied, posted, transmitted or otherwise used in any form without the express written consent of the author.
Chapter 4: Copyright Ownership, Creation and
Copyright Ownership and Transfer
A copyright is a personal property right that vests in the author or authors of a work. In situations when a work is made for hire (e.g., when an author is contracted by a publisher to write a book in exchange for royalties and/or other payment), the copyright owner is the employer who commissions the work who owns all the rights provided in the copyright to the work absent a written agreement to the contrary. In work for hire arrangements, the author may be credited with authorship of the work, but it is the employer who commissioned the work who owns the copyright and has the right to dispose of the work in any way it sees fit absent an agreement to the contrary with the author. The owner of a copyright may dispose of it the same as any other type of personal property. Namely, she may sell it, license it, or give it away during her life or after death by a provision in a valid will.
The Difference Between Ownership of a Copyright
and Ownership of Physical Objects
When someone owns a copyright, she or he owns the right to the expression of an idea that has been put in a tangible form. The expression of that idea and the copyright are two distinct rights and transferring one does not automatically transfer the other. For example, if you purchased this book, you own it and have the right to give it away, sell it to someone else or even destroy it. By purchasing a copy of this book, you did not purchase its copyright however. Thus, you may not copy the book to give away to someone else or post an electronic copy of it online; such use would constitute copyright infringement and could subject you to both civil and criminal penalties. The book is personal property, but the intellectual property-the copyright-is retained by the copyright owner. The same, of course, is true of movies, audio books and music distributed in traditional media such as compact disks and DVDs, or downloaded electronically to be played on a computer or electronic device. You own a copy of the movie or music that you purchase, but can only use it in ways that do not infringe on the copyright owner's property rights. (E.g., you can give away the original DVD containing the latest new release after you view it, but you cannot make a copy of it to sell or give away to a friend.) If you belong to a movie rental service that allow you to download movies online, you may view the movie in accordance with your rental agreement either once or as many times as the agreement allows. But you may not copy the movie to your hard disk or burn it to a DVD or, for that matter, use screen capture software to save the movie or a video recorder to record if off your computer screen. Of course, you also may not hook up your computer to a video projection system and project the movie outdoors for your neighbors to enjoy. (Projecting the movie indoors for the benefit of non-paying guests, however, would be fine as long as the viewing is not open to the public.)
Duration of Copyright
Copyright in works created on or after January 1, 1978 last for the life of the author plus an additional 70 years after the author's death.For works prepared by two or more authors, the copyright lasts for the life of the longest surviving author and for 70 years after the death of the longest surviving author. Copyrights in works published anonymously or under a pseudonym will last for 95 years from the date of their first publication or 120 years from the date of creation, whichever expires first. But if such works are registered prior to the expiration of this time period in the name or names of their true authors, then the copyright will extent to the usual life of the longest-lived author and 70 years after his or her death.
In the case of works for hire, where an author is contracted to create material as an employee that is to be copyrighted by the employer (e.g., a publisher of college textbooks who owns the copyright to work created by its authors under the terms of the typical publication agreement), the copyright protection runs for 95 years from the date of first publication or 120 years from the date of creation, whichever expires first.
Copyrights that became effective prior to January 1, 1978 generally lasted for 28 years from the date of creation, with an additional extension of 67 years available to authors, their heirs and to owners of copyrights that were commissioned as works for hire.
The Process of Securing a Copyright
Copyright protection attaches automatically to any work of authorship as soon as it is created and saved in a permanent form. It is not necessary to formally register the work with the U.S. Copyright Office for copyright protection to attach. However, and most importantly, copyright registration is a prerequisite to bringing suit for copyright infringement. So that while copyright protection may attach automatically to a work of authorship fixed in tangible form, one may not begin a lawsuit to recover or enjoin copyright infringement without registration.
The good news for authors, musicians, choreographers, performance artists, painters sculptors, architects, business people and all others who want to protect their works of authorship against infringement is that the process for registering one's copyright is relatively simple and can be accomplished at a very modest cost.
Copyrighted material can be registered in the U.S. Copyright Office either by filing the required forms and payment through the mail or electronically. Of the two, the online method is less expensive and generally results in faster processing times. As of this writing, the filing fee for a registering a basic claim to a single work is $35 if electronic filing is used and $50-65 if paper forms are filed through the mail. The U.S. Copyright Office estimates that 90 percent of electronic filers will receive a copyright certificate within six months of filing a complete submission, while one-third will receive the certificate within ten weeks of filing. Filings through the mail take a bit longer with 90 percent of certificates received within eight months of submission and one-third of filers receiving certificates within five months of filing. (You will find samples of the current forms in Appendix A.)
Copyright registration can generally be accomplished at any time when copyright protection is in force for both published and unpublished works. Whether registration is done electronically or by regular mail, a copy of the unpublished work or phonorecord must accompany the complete application along with the required fee. If published work is involved, then two copies of the best edition of the published work or phonorecord must accompany the application. If the copyright relates to an author's contribution to a published collected work (e.g., a chapter in a book or short story in a collection of short stories), a single copy of the published work or phonorecord must accompany the application.
 17 U.S.C. §201(b) (2006).
 This is the usual arrangement in the writing of college textbooks, for example. But a work for hire can result in work created by an employee in his role as employee, such as reports, artwork, web page designs, and other works of authorship produced by the employee in the normal course of employment that qualify for copyright protection. Absent an agreement to the contrary, including terms in an employment contract or in a collective bargaining agreement covering employees in a union environment, works of authorship produced on the job as part of an employee's work responsibilities generally belong to the employer.
 See 17 U.S.C. §202 (2006).
 17 U.S.C. §302(a) (2006).
 17 U.S.C. §302(b) (2006).
 17 U.S.C. §302(c) (2006).
 17 U.S.C. §304(a)(1)(A)-(C) (2006).
 The USCO provides tutorial assistance for using the electronic filing option at http://www.copyright.gov/register/index.html (last visited September 2, 2009).
 Information on all current filing fees and services can be found at http://www.copyright.gov/docs/fees.html. (last visited September 2, 2009). Information on current fees can also be obtained by telephone from the Copyright Public Information Office at (202) 707-3000, 8:30 a.m. to 5:00 p.m. eastern time, Monday through Friday, except federal holidays, and by writing the Library of Congress, Copyright Office, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000.
 http://www.copyright.gov/register/index.html (last visited September 6, 2009)
 17 U.S.C. §408(b)(1) (2006).
 17 U.S.C. §408(b)(2) (2006).
 17 U.S.C. §408(b)(3) (2006).