Law Office of David MacTavish, LLC

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Original works of authorship may be copyrighted and include: literary works; musical works, including accompanying words; dramatic works, including accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Within these categories a wide range of works may be registered from photographs to modern dance steps, table linen designs to lamp base sculptures.

This does not include works that must be patented or trademarked (see Intellectual Property).

Copyright subsists only in works that are fixed in a tangible medium of expression, that is, some physical form. To protect music, for example, it must exist as a writing (i.e., musical notation) or a recording, it cannot merely exist as someone's idea or live playing. A qualifying work is copyrighted at the moment of creation–when a photographer exposes film or creates a digital image file, or a writer places pen to paper, for example. Ideas, concepts, methods of operation, principles, or discoveries are not eligible for copyright protection; only their descriptions are protectable and registrable if written or recorded, because then they exist in a physical form.

The United States Copyright Act gives copyright owners–usually the actual creator of an original work–the exclusive right to control the reproduction, distribution, performance, and display of a work, as well as creation of a derivative work based on the original work.

The owner of a physical work, like a painting, may not always be the owner of the copyright. Therefore, a copyright owner may enjoy the exclusive rights offered in the Copyright Act, and some other person may possess or own the physical art. This situation is typically seen when sculpture, paintings, and other kinds of original art are sold. Unless the buyer has purchased additional rights, the buyer may only display the purchase in her home. The author may make derivative copies, have photographs of the work reproduced in magazines, and the like.

A copyright is said to be infringed when someone engages in any of the exclusive rights of a copyright owner without authorization of the owner (for example, copying music, images, or text).

Before a copyright owner can sue for infringement, the copyrightable work must first be registered with the Copyright Office. If an unregistered, published work has been infringed the owner has only ninety (90) days after the work was first published in which to register the work in order to be compensated for her attorney's fees and costs in a lawsuit. However, if a work is infringed and not timely registered, attorney's fees compensation will not be available, although a lawsuit can still be filed. However, the lack of fee and costs compensation often makes a case unattractive to lawyers.

There are two types of damages available when a copyrighted work has been infringed: statutory (assuming the work was timely registered) and actual damages.

Under an actual damages theory a copyright is compensated for what they would have received had the infringer come to the owner and licensed or purchased the work in the first place. So, if you would have licensed the work for, say, $750, that may be all that you can recover in a lawsuit. Under actual damages you can't be compensated for lawyer's fees that may range into tens of thousands of dollars. On the other hand, if you know that an infringer has made a lot of money from the use of your work, you can also seek the infringer's profits in addition to your actual damages. Actual damages cases can be particularly troublesome for authors who lack a business track record of past sales or licensing or who have always charged low prices.

If you time registered the work with the Copyright Office, you are eligible to seek statutory damages that can range from $750 up to $30,000, and if you can prove the defendant willfully infringed (that is, knowingly used your work to avoid the copyright law) you can receive up to $150,000. Under a statutory damages theory a copyright owner is also eligible for lawyer's fees and costs compensation.

Although copyright generally exists for the life of the author plus 70 years for works created after January 1, 1978, owners should always register copyrightable work. Even if a physical work is sold the author should always retain and register the copyright in order to have the right to use the work in promotions, as a  basis for derivative works, and to be able to reproduce and sell or license copies. A copyright can be a valuable asset for authors and their heirs. The cost and time to register a copyright is minimal, but you have to take the time to do it.

The Law Office of David MacTavish, LLC can negotiate agreements or provide stock or draft new documents for the sale or licensing of artwork, register copyrightable work, and address any of your other copyright needs and questions.