Copyright law protects diverse works of authorship, including musical works, literary works, choreographic works, architectural works, pictorial, graphic and sculptural works, databases and computer software. Copyright ownership involves substantial commercial interests especially in the music, publishing, entertainment and software industries. Despite the commercial importance of the area, misconceptions abound. Seven such misperceptions are discussed below.

1. The Absence Of Copyright Notice On A Work Does Not Signal That The Work Is Free To Be Copied.

Many people believe that the absence of a copyright notice1 on a work such as a fabric design or literary work or greeting card or toy, etc. indicates that there is no copyright protection for the work and that it may be freely copied. For example, if a pleasing fabric design is found either in this country or abroad without a notice, clients may assume that it is permissible to copy the pattern. Under the Copyright Act of 1976 (and its predecessor act), copyright notice was required to be affixed to publicly distributed copies of a work. However, the Copyright Act was amended to delete the notice requirement for works first published after March 1, 1989.2 Moreover, even with respect to works published after 1977 (the effective date of the Copyright Act of 1976), the omission of notice on copies of a work could and can be cured under certain circumstances.3 Copyright protection is not lost where an effective cure is made. Therefore, one cannot assume that a work is in the public domain merely because it does not bear a copyright notice.

2. Freelance Authors Normally Own The Copyright In Works They Create, Not The Entity Which Pays For The Work.

When an employee of a company creates a copyrightable work within the scope of his or her employment, the employer is considered the author of the work as a "work made for hire" and owns the copyright in it.4 For example, an architect who creates architectural drawings while working as an employee of an architectural firm does not own the copyright in the drawings, the architectural firm does.

However, many times companies use outside contractors to create copyrightable works for them, such as computer software, advertising material, artwork or even a corporate logo. Companies often believe that they own all rights in the works created, including the copyright, because they paid for the work performed. This belief is normally misplaced. Works created by independent contractors are only considered works made for hire (and thus owned by the commissioning party) if there is a written agreement stating that the work is intended to be a work made for hire.5 Further, the work must be one of the specifically enumerated types of work which can qualify under the statutory definition of a work made for hire, such as a movie or an atlas.

If it is the company's intention to own the copyright in a work, it is therefore extremely important to advise clients who deal with outside artists, photographers, advertising agencies, software developers and the like, to enter into a written agreement covering ownership of the copyright rights in a work, either through setting forth the work made for hire status of the work and/or by including an assignment of rights.

3. Copyright Registration Is Not Required In Order For Copyright Protection To Exist.

A commonly held misconception is that it is necessary to register a claim of copyright in the Copyright Office in order to secure copyright protection for a work. Copyright ownership in a work, however, exists from the moment that the work is created and fixed in a tangible form.6 For example, once a piece of music is written in musical notation or is recorded (i.e. is fixed in tangible form), the composer of the music owns the copyright in the composition. It is not necessary to apply to register the work in the Copyright Office. Even an unregistered copyright interest can be transferred or infringed.7

4. Photocopying Newsletters, Articles And The Like Can Lead To An Infringement Claim.

In the wake of the Second Circuit's decision in American Geophysical Union v. Texaco,8 many companies are uncertain whether their photocopying practices conform with the law. In Texaco, the court found that systematic photocopying of articles from scientific journals by Texaco researchers was infringing and not excused "fair use"9 as Texaco claimed.

The photocopying question often arises after an approach by the Copyright Clearance Center ("CCC"), an organization which represents numerous newspaper, periodical and other publishers, and which grants photocopying licenses for its stable of publications. Even before the Texaco decision, it was clear that the photocopying practices of many companies fell afoul of the copyright law. For example, photocopying a periodical for circulation purposes injures the copyright owner who would otherwise be able to sell more subscriptions to the periodical and does not qualify as a fair use.

More difficult are questions of photocopying of articles by employees for their own use. The Texaco court drew a distinction between copying by Texaco researchers for archival purposes, i.e. for keeping articles for their possible future reference value, versus spontaneous copying to take into the lab for research purposes. Although the court did not decide the spontaneous copying for lab research purposes, it indicated that such copying may well qualify for the fair use defense, whereas, the archival type of copying did not. For example, the distinction is between a lawyer who copies articles to keep for reference purposes versus one who copies articles to bring to a court hearing or argument. Because photocopying practices involve a myriad of different types of copying, careful analysis is required to assess the need for permission or a license.

5. Copyright Protects Expression, Not Ideas Or Facts.

If a client creates a doll with two heads and is eager to have the doll copyrighted so that others will not be able to make a two-headed doll, the client is doomed to disappointment. The copyright law does not afford this kind of protection. The copyright law draws a distinction between ideas on the one hand, which are not protected by copyright, and expression on the other, which is. The idea/expression dichotomy is rooted in balancing the copyright goal of providing incentive to authors to create new works by giving such authors a limited monopoly to their work against First Amendment values of free expression and dissemination of ideas. Thus, in the case of the two-headed doll, copyright would not protect the idea of making a two-headed doll, but would protect the particular manner in which the client's two-headed doll was expressed. Others could make a two-headed doll; they simply would be precluded from making a two-headed doll which was substantially similar to the client's.

Similarly, copyright does not protect facts, but only the manner in which such facts are expressed or selected and arranged. For example, a biographical work consists primarily of facts about the subject's life. Anyone is free to use the underlying facts as long as the particular manner in which the facts are expressed is not copied. Another illustration involves telephone directories. Two decisions, one involving white page telephone listings10 and the other yellow page telephone listings11, held that such listings arranged alphabetically are uncopyrightable facts and may be freely copied and used. The fact that substantial effort went into the compilation of these listings was found to be irrelevant.

Copyright, therefore is not a panacea for those who wish to monopolize ideas, facts, or the process of researching and compiling such facts12

6. There Is No Objective Yardstick Which Permits Making Something "The Same, But Different."

Many industries possess a folklore concerning permissible copying. For example, in the fabric field, designers often state a quantitative rule for noninfringing copying of a pattern, such as making at least four changes or changing a pattern twenty percent. In the music industry, some musicians cite the "taking less than four bars" safe harbor. These shibboleths are totally erroneous. The standard of infringement of a work is not measured against some quantitative calculus of how much was taken or how much was changed, but rather involves an overall comparison of the works at issue and asking the question whether or not the two works are substantially similar. For example, in the case of fabric designs, courts look to the overall aesthetic look and feel of the two works for substantial similarity and not to how many changes have been made. In the music infringement context, courts will look to the qualitative significance of the portion copied.

The moral of the story is that there is no set safe amount of copying which will avoid scrutiny under the substantial similarity analysis.

7. Purchase Of A Copyrighted Work Does Not Equal Ownership Of The Copyright.

Purchasers sometimes assume that they obtain the copyright in works which they acquire, such as a manuscript or painting, and that they can commercially exploit the work. For post-1976 acquisitions, however, this is a false assumption. The Copyright Act distinguishes between the material object in which a work is embodied, such as a painting, and the intangible copyright interest. Transfer of the object does not per se transfer the copyright in the work.13 Copyright interests can only be transferred by a signed writing or by operation of law.14 For example, the purchaser of a painting could hang the painting in his or her home or sell the painting, but could not reproduce the painting for sale on postcards. It is important, therefore, in any acquisition of a copyrighted work, where the intention is also to acquire the copyright, that a signed writing be executed.

Originally printed in the ABA Journal, August 1996, Copyright © 1996 Cowan, Liebowitz & Latman, P.C.

Footnotes

1A copyright notice consists of the symbol "©" or the word "Copyright" or "Copr." followed by the date of first publication of the work and the copyright owner, e.g. ©1996 Cowan, Liebowitz & Latman.

2See 17 U.S.C. §401(a) (notice is permissive). There are, however, still many good reasons for using such notice, not least of which is the misconception that many people have that absence of notice means a work is in the public domain.

3Id. §405.

4Id. §§101 and 201(b).

517 U.S.C. §101. Seealso Community for Creative Nonviolence v. Reid, 490 U.S. 730 (1989) (sets forth the factors for determining when someone is an independent contractor versus an employee).

6Id. §102(a).

7Nevertheless, there are significant advantages to registration, such as the ability to obtain attorney's fees and statutory damages in an infringement proceeding. See 17 U.S.C. §412. Additionally, a registration (or denial of an application) is a prerequisite to bringing an infringement action for a domestic copyright plaintiff. Id §411(a).

860 F.3d 913 (2d Cir. 1994).

9Section 107 of the Copyright Act, 17 U.S.C. §107, provides for a fair use defense to infringement by weighing a number of factors, including the nature of the use, the nature of the copyrighted work, the substantiality of the taking and the impact of the use on the potential market for the copyrighted work.

10Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

11Bellsouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 999 F.2d 1436 (11th Cir. 1993), cert. denied, 114 S. Ct. 943 (1994).

12Copyright does, however, protect any original selection, coordination or arrangement of such facts. 17 U.S.C. §§101 and 103(b).

1317 U.S.C. §202.

14Id. §204(a).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.