An IP and Copyright Primer: What You Need

to Know in an Ever-Evolving Publishing

Landscape

Dana NewmanAttorney and Literary Agent

Definition of Copyright

The exclusive right of the author or creator of a literary or artistic property (such as a book, movie or musical composition) to print, copy, sell, license, distribute, transform to another medium, translate, record or perform or otherwise use (or not use) and to give it to another by will.

(dictionary.law.com) 

What Copyright Protects

Original works of authorship (literary, dramatic, musical, film, pictorial, graphic, sculptural, sound recordings, pantomines, choreographic, and architectural works)

Fixed in any tangible medium of expressionNow known or later developedWhich can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

What Copyright Does NOT Protect

Ideas, procedures, processes, systems, methods of operation, concepts, principals or discoveries.

-Can’t register a copyright for a title or name (possible trademark)

Derivative Works

A work based on a preexisting work, consisting of revisions, annotations, elaborations or other modifications which, as a whole, represent an original work of authorship.

Only the material contributed by the author of the derivative work may be protected under a new copyright registration

Independent of original copyright – does not change original copyright

The Exclusive Rights in Copyrighted Works

Reproduce the copyrighted work in copies;Prepare derivative works based on the copyrighted work;Distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;

Perform the copyrighted work; andDisplay the copyrighted work publicly.

Limitations on the Exclusive Rights

Fair Use:

- Criticism

- Comment

- News reporting

- Teaching (including copies for classroom use)

- Scholarship

- Research

Fair Use Test: “Rule of Reason”Nature of the useNature of the workAmount and substantiality of the portions takenEffect on the potential market

Parody - may be fair use, even if commercial. Needn’t be funny, but must comment on or criticize the original.

Titles of songs, movies, TV shows, names of people, places, things OK to use.

Songs – require permission to use one or more lines.

Limitations on Exclusive Rights - continued

First Sale:

- A purchaser of a legally acquired work can resell, lend or give away that copy without consent of copyright owner.

- Can’t make unauthorized copies.

- Digital works: owner or licensee? Making a copy.

- Capitol v. ReDigi

- Amazon patent

- Owners’ Rights Initiative

How Long Does Copyright Last?

Works created after 1978: life of the author + 70 yearsJoint works: life of last surviving author + 70 yearsWorks for hire, anonymous, pseudonym: 95 years from 1st publication or 120 years after creation, whichever is first

Termination of Copyright Grants: Works created after 1978 can be terminated 35 years after the transfer – 2013 is the year many of these issues are coming up.

Public Domain: Generally, all works created in the U.S. before 1923

How Do You Get Copyright Protection?

Copyright protection attaches automatically, once a work is “fixed” Notice

- Not required (but recommended)

- Symbol © or word “Copyright”; year of first publication; name of owner

Registration

- Benefits: public record of ownership; evidence of validity; can bring action in federal court; statutory damages

- File online www.copyright.gov - $35 fee plus deposit of copy

Copyright Infringement

To bring a claim, must prove: (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original

Rarely direct evidence. Inferred from proof of access and “substantial similarity”

Remedies: injunctions, actual or statutory damages. Statutory = $750-$30,000 per infringement, $150,000/infringement if willful infringement proven

Online Piracy DRM Legislation: DMCA; SOPA and Protect IP Act bills shot down Other Legal Reforms for the Digital Age:

- House Republican Study Committee, Copyright Office

- International: EU, U.K.,Canada, Ireland, Australia, The Netherlands, South Korea, India all reviewing their copyright laws

Private Industry Voluntary Best Practices:

- Credit card companies, advertising networks

- Copyright alert system - ISPs, studios, publishers

- Google’s changes to search algorithm

Copyright Licenses Granting the right to reproduce and distribute the work in exchange for a

royalty; not a sale. Govern use, not ownership – Author reserves all rights not granted. Term: length of copyright, or until work goes “out of print”

- Digital – defined using a sales or dollar threshold

Creative Commons License – facilitates broad sharing online

- 6 different licenses

- Commercial; Modifications/Derivative Works/”ShareAlike”

- Attribution – all licenses

Permissions Must make a reasonable effort to contact the legal owner of the work:

- Publisher

- U.S. Copyright Office, WorldCat.org

- Licensing Organizations:

- Publications: Copyright Clearance Center www.copyright.com

- Music: ASCAP www.ascap.com/licensing BMI www.bmi.com/licensing SESAC www.sesac.com/licensing/obtainlicense.aspx

- Photos: Getty Images www.gettyimages.com Corbis Images www.corbisimages.com

Special Issues With Permissions

Multi-media works: text, photos, illustrations, animation, video, music, film/TV

Co-authors, ghostwriters, third party developers: written work for hire agreement, assignment, warranty and indemnification

Permissions should cover broad range of formats

International Copyright Protection

No one global registration that will protect your work – depends on the laws of each country.

International Copyright Treaties: U.S. registration can be used to bring a claim of infringement that occurs in a country that’s a member of the Universal Copyright Convention or the Berne Convention.

More info: www.copyright.gov/circs/circ38a.pdf

Trademarks

A word, phrase, symbol or design that identifies and distinguishes the source of goods/services of one party from those of others.

-Titles (series only), author or brand name, where other products/services being offered

To get a registration:

-Must provide evidence of actual use in commerce, and

-The mark must not be so similar to another mark that there is a likelihood of confusion as to the source of the goods/services.

More Information:

www.copyright.govwww.creativecommons.org www.uspto.gov

Copyright Education:

- www.copyrightfoundation.org

- www.teachingcopyright.org (Electronic Frontier Foundation)

Dana Newman

Attorney and Literary Agenthttp://about.me/dananewman

@Dana Newman