Understanding Copyrights

What is a Copyright?

Copyright law serves to protect original works of authorship fixed in a tangible medium of expression, including literary, dramatic, musical, and artistic works. You are probably familiar with various copyrighted works, because all original, creative works are under copyright protectionthe moment they are created. If you’ve recently read a book, watched a movie, visited a museum, or listened to the radio, odds are you’ve encountered various copyrighted works. Take HarryPotter, for example. All of the Harry Potter books, movies, soundtracks, dramatic plays, and various other works are copyrighted, so that only J.K. Rowling and other contributors of original works have legal protection.

Even though all original, creative works are technically under copyright protection when they are created and fixed in a tangible medium, it is still imperative that the creator register the copyright with the United States Copyright Office. Registration of the copyright is a prerequisite to the right to sue for copyright infringement in the United States, so without registering there is no legal recourse in the event of misuse of copyrighted materials. Additionally, registered worksmay be eligible for certain damages and attorney’s fees in litigation. Enforcement of the copyright is also a good reason to hire a lawyer specialized in intellectual property, as they can identify copyright infringement and recommend a clear course of action to take in that situation.

Owners of copyrights enjoy many benefits, such as the exclusive right to reproduce the work, distribute copies of the work, perform the work publicly, and display the work publicly. They also have the option to transfer or sell these rights to another party if they so choose. One of the most interesting rights is that of creating derivative works based upon the work, also known as adaptation rights. Returning to the example of Harry Potter, once J.K. Rowling wrote the first book, she held the exclusive right to create and distribute sequels of the book, as well as translate those books into other languages. She also held the right to adapt it into other forms such as movies and plays. By obtaining copyright protection for her original work, she was able to build on her ideas and create one of the most universally recognized literature franchises in the world.

In some limited circumstances, for certain classes of works that have a history of infringement before commercial distribution, such as motion pictures and sound recordings, a work can be submitted for preregistration before it is completed. This option is available only for certain classes of unpublished works in the process of being prepared for commercial distribution. For example, someone making a feature-film may be concerned that an employee or hacker could leak parts of the movie to the public before its official release date. In that case, pre-registration could protect the work until it is ready for its big debut, and registration afterwards will continue the protection. To be clear, pre-registration is not a substitute for registration, and registration must occur within certain time periods in order for the protection to be valid.

You may be wondering if there’s anything that can’t be copyrighted. Items ineligible forcopyright protection include any work that is unoriginal, facts and unoriginal collections of facts (such as a telephone directory), items published by the United States government, and items that

are in the public domain. Items in the public domain are theoretically owned by everyone, and are intended to be shared, so no single person can claim a right to such works. At this time, everything that was copyrighted before 1923 has since expired, and therefore has entered the public domain.

Additionally, items like recipes, which simply state a list of ingredients and plain instructions, are generally considered to be in the public domain. The Supreme Court determinedthat, “The identification of ingredients necessary for the preparation of each dish is a statement of facts.” That’s why you may come across many of the exact same recipe online over and over again. However, while you may not be able to copyright the most basic elements of your recipe, adding in creative descriptions of the procedure for making the food, photographs of the finished product, or illustrations, can make your recipe unique enough to be partially protected by copyright law. The key is that copyright is intended to protect creative works, so adding a little flair to a boring list can potentially make your work eligible for copyright protection.

There is a lot of complexity surrounding what exactly can be copyrighted, what copyrightinfringement actually looks like, and how to best avoid infringing on someone else’s copyright. If you’re considering registering a copyright for your original work, or you have questions about your work infringing on the rights of others, or someone infringing your work, it is in your best interest to hire an intellectual property attorney. This attorney can prevent you trouble in the long run, as well as help you to protect what is rightfully yours.

Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving businesses and entrepreneurs. Jessica G. McDonald is Of Counsel to LOVE LAW FIRM, PLLC and leads its Intellectual Property practice. The opinions expressed are those of the authors. This article is for general information purposes and is not intended to be and should not be taken as legal advice. To learn more about LOVE LAW FIRM please see our website, www.lovelawfirmpllc.com, or call us at 516-697-4828.

Francine E. Love
Principal attorney at Love Law Firm, PLLC which dedicates its practice to New York business law