Intellectual Property Law: What Does a Copyright Protect?
Intellectual property law mostly involves copyrights, patents, and trademarks that are used to legally protect the output of all kinds of creative people. The right of publicity, which involves protecting the image and name of a person, and trade secrets, which are sensitive pieces of business information that a competitor might want to exploit for its own purposes, also fall under the umbrella of intellectual property law.
What a Copyright Can Cover
According to the U.S. Copyright Office (USCO), a copyright can be used to prevent someone from copying or using without consent the following types of artistic endeavors:
- Literary works
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings, which are works that result from the fixation of a series of musical, spoken, or other sounds
- Architectural works
Those broad categories can be broken down into more specific examples such as poetry, streaming audio, streaming video, video games, paintings, and software code.
The creative work must be published, on paper or electronically, or otherwise fixed in a tangible form of expression. That could mean a recording of a dance performance or a sculpture that has been constructed based on an artist's sketches.
The USCO says a copyright gives the owner the exclusive rights to:
- Reproduce the work
- Prepare derivative works based upon the work
- Distribute—by sale, rental, lease, or lending—copies of the work to the public
- Perform the work publicly (if applicable)
- Display the work publicly (if applicable)
- Authorize others to exercise these exclusive rights, subject to certain statutory limitations
A copyright can't be used for something intangible, such as a story a woman tells her grandchildren over lunch that's overheard by a writer of short fiction who's sitting at the next table in the restaurant.
Titles; pseudonyms; company, group, or product names; and advertising slogans cannot be copyrighted, though they may be protected in some other way, such as by a trademark. The specific design of a logo for a company can be copyrighted, but the name of the company can legally be used by others in a different way.
Copyright does not protect ideas—only the form of expression of an idea. If you write a book about how to make millions in the foreign exchange market, someone else can write another book about that same idea; they just have to use their own words instead of yours.
Plots—a person falls in love with someone, loses that someone, and wins that someone back—can't be copyrighted. Neither, according to LegalZoom, can facts, common or public information, government publications, lists of ingredients (though the text of a recipe describing how to use the ingredients to prepare the particular dish can be), the text of laws and court opinions, typefaces, or the design of everyday objects like scissors.
Multiple Creators and Works Made for Hire
Copyrights are more complicated when there are multiple creators or someone is hired to make a creative work for the person who will own the copyright.
According to the USCO, when two or more people collaborate on a unified project, they are joint authors and neither's contribution can be separated from the work. If multiple people contribute to a collective work made of distinct parts, each author's contribution and copyright are distinct from the copyright ownership for the entire work.
When a work is made for hire, the person who created the work relinquishes copyright to the hiring party either because the person 1) is employed by a company to create copyrighted works for it or 2) has entered into a contract with a company or individual to create the work.
Registering a Copyright
Copyright automatically applies to your creative work as soon as it comes into existence and is fixed in a tangible medium. However, LegalZoom recommends registering your work with the USCO for several reasons.
Ability to sue for copyright infringement: The Copyright Act of 1976 requires copyright owners to register with the USCO before they can file an infringement suit in federal court.
Proper public notice of copyright: Registration establishes a public record of a copyright and prevents someone from claiming they were unaware a work was copyrighted. Registration also enables the author to use the word "Copyright," the copyright symbol ©, or the abbreviation Copr. on their work.
Damages and attorney's fees: If you register your work before someone infringes on your copyright, the infringer can be liable for both statutory damages and attorney’s fees. If you don't register your work, the infringer can be liable only for actual damages and profits.
Prima facie evidence and a permanent record: Your registration certificate from the USCO is considered to be prima facie evidence of the validity of your copyright. That means, in the event of a trial, the infringer must prove they have some legal right to the work.
Registration also provides a permanent record of your copyright, and the certificate can be duplicated by the USCO if it is lost or destroyed. The certificate can also be given to the buyer of your copyrighted work of art or passed on to a beneficiary after your death.
Royalty payments: In the case of recorded music, registration enables you to collect royalty payments from those who make authorized use of your works.
Transferring a Copyright
A copyright owner can transfer some or all of their rights to another party by a written agreement. If the original owner chooses, they may later terminate the transfer.
Length of Copyright Protection
For works created by a single author on or after January 1, 1978, copyright lasts for a term of 70 years after the author’s death. In the case of multiple authors, the copyright lasts until 70 years after the last surviving author’s death.
For works made for hire or anonymously or pseudonymously, copyright lasts for a term of 95 years from publication or 120 years from creation, whichever is shorter.
For works created and published or registered before January 1, 1978, copyright lasts until at least December 31, 2047.