Copyrights FAQ

1. How long does a copyright last?

A copyright lasts for the life of the author + 70 years (if the author died in 2000, the copyright will expire in 2070). If the work is owned by a company (a work made for hire), the copyright expires either i) 95 years from the date of publication, or ii) 125 years from the date of creation, whichever is shorter.

2. Do I need to file an application with the U.S. Copyright Office to have a copyright?

No. The right of copyright (that is, the right to prevent others from copying, distributing, making derivative works, etc of a work of authorship) is instantiated when the work is “fixed” in a tangible medium. However, registration does impart certain benefits.

  1. In the U.S., registration is a prerequisite to filing a lawsuit against someone for infringement. This means that while your rights exist automatically, in order to enforce them you need to file a registration. You could wait until you need to sue someone to file your registration, but you would lose some additional rights that early registration offers.
  2. The most important right afforded to early filers is the possibility of obtaining certain statutory damages (up to $150,000 per willful infringement) and recovery of attorneys fees. In order to qualify your registration must be filed (i) within three months of the work's first publication or (ii) before an infringement occurs.
  3. Registration obtained within five years of initial publication provides prima facie evidence in a lawsuit that your copyright is valid (including your ownership of the work).
  4. If you have an opportunity to sell your copyright to a buyer, a copyright registration will be necessary to record the transfer of copyright.

3. How much of a copyrighted work can I use without permission?

One defense to infringement is the doctrine of “fair use.” The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Furthermore, acknowledging the source of the copyrighted material does not substitute for obtaining permission. That said, there are factors that should be considered in any “fair use” analysis:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

If there is any question as to whether use of a copyrighted work is an infringement or protected by “fair use,” a knowledgeable intellectual property attorney should be consulted.

4. Is all content on the Internet considered in the public domain?

No. Just because a work is available to the public does not mean that it is in the public domain. It is still covered by copyright protections in much the same way that a New York Times bestseller is still protected by copyright even though it’s available at the library. Moreover, a website may have multiple different copyrights associated with its content. For example, a website may contain a description of the Vatican (wherein the copyright in the description vests in the author), a photo of St. Peter’s Basilica (wherein the copyright vests with the photographer, and the website owner (hopefully) has a license to use the photo), and music in the background (wherein several copyrights may be at issue including a copyright in the lyrics and arrangement and another copyright in its performance).

5. I came up with an idea for a movie and wrote a script. I hid my script until I could spend some time sending it to the right people. Now a studio is using my idea, do I have a claim?

No. Unlike patents, to infringe a copyright, the alleged infringer must have had access to the copyrighted work and the alleged infringing work must be substantially similar to the copyrighted work (not just incorporating an idea). If you hid the copyrighted work, the studio did not have access to your script and thus could not have infringed the copyright. Moreover, the studio would likely be able to defend against any such claim of infringement under the doctrine of independent creation – that is, the studio’s team that developed the movie, created it themselves without any input from your script.

6. I wrote my own software while at work. Does my employer own the copyright to that software?

Generally, most intellectual property ownership issues are governed by clauses within employee handbooks or employee contracts. In the absence of such contracts, the ownership of the work vests with the author of those works unless the work was created by the employee within his scope of employment (for example, you are employed as a software programmer), or the work is specially commissioned or ordered (often known as a “work made for hire”).