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What does a copyright attorney do?

A copyright attorney helps you protect your work and design the best strategy to exploit it. Copyright lawyers represent you when someone else is using your material without your permission, especially for financial gain. If you're considering filing for a copyright for new work, you may want to involve a copyright lawyer to help you navigate the process, complete the registration quickly and legally, and without the stress of doubting whether you're using the right process.

What is a Copyright?

Copyright is the legal protection of the work of an artist or a creator. Movies, photos, videos, music, marketing materials are protected under Copyright Law. A work is protectable under copyright law if it is tangibly fixed, and an original form of expression. In the United States, copyright law is governed by federal law, specifically, the Copyright Act of 1976. Under the Copyright Act it is against the law to copy, display, reproduce or exploit a work of an author without authorization. 

Does Copyright Protect Ideas?

Copyright does not cover "idea theft". However, if an idea is transformed into a literary work, a photo, a  short film, a choreography, or some other tangible creation then it is protected under copyright law. Now, it is important to understand that ideas and information may be protected by other means like Non-Disclosure Agreements, Trade Secret Strategies, etc.

Why You Need a Copyright?

Artists and businesses who produce something, whether it's an online blog, a unique photo, a screenplay, a poem, a movie need to pursue copyright protection. Otherwise, there can be victims of copyright misappropriation and end up without legal protection. As opposed to other jurisdictions, in the United States, you need a copyright registration before you can sue for copyright infringement. Additonally, if you register your work with the U.S. Copyright Office either (1) within three months of publication or (2) before the infringement starts, you are entitled to statutory damages. Statutory damages are monetary damages that you don't have to prove, if you are not entitled to Statutory Damages, then, you have to prove damages in other to recover from the party who used your work without authorization. Considering the cost of litigation, proving damages can be burdensome for some creators. 

Statutory damages can be awarded by a judge or jury to a copyright owner in a copyright infringement suit. Statutory Damages are established by Section 504 of the Copyright Act. Statutory damages are usually between $750 and $30,000 per work. However, the damage amount can be increased up to $150,000 per work if the infringement is found to be willful (intentional). If the infringement is “innocent” (the infringer did not know) damages can be reduced to a minimum of $200 per work.

Statutory damages are awarded “per work” infringed. For Instance, if Bob takes Duck's five unique photos without permission and displays them on his website, Duck as the copyright owner will be able to recover statutory damages for each one of the works, for a total of five awards. If a judge orders payment of statutory damages equal to $750 per work, Duck is entitled to a total award of $3,750.

What is a derivative work?

Section 103(a) of the Copyright Act expressly provides that the subject matter protected by copyright copyright includes derivative works. A derivative work is defined as "a work based upon one or more pre-existing works...". The concept of derivative work can be very broad. Common derivative works might be a translation, fictionalization, motion picture version of previous literary work, sound recording, art reproduction, and any other form in which a work may be recast, transformed, or adapted.

The issue with derivative works is that they may trigger copyright infringement. For that reason it would the best if artists created their work with absolute independence. However, it would be absurd to recognize that to some degree all arts and sciences are, in part, based on other's pre-existing work. That said, if a work that was inspired by another work is sufficiently unique as to satisfy the originality requirement of copyright law, that work on itself may not constitute infringement.

Do you know what copyright infringement is and what initial considerations are important, read our post about it: Can I Claim Copyright?

I didn't know won't help you when it comes to Copyright Infringement...

When we think about derivative works, it is important to understand that the law does not refer to all works that borrow to any degree from a pre-existing work. A derivative work would be considered infringing if what is borrowed consists in more than ideas but is actually an unauthorized copy of a pre-existing work with minor or insignificant variations.

Permission Needed To Create Derivative Works

Under copyright laws, a copyright holder is the primary holder of the right to create derivative works. A copyright holder has the right to prepare and distribute derivate works based on the original copyrighted work. Unless otherwise agreed to, the right to create derivative works is exclusive. Therefore, if a copyrighted work is used to create a derivative work without the appropriate permission of the copyright owner, the unauthorized derivative work usually constitutes copyright infringement. Usually, to create a derivative work, you must acquire a license from the copyright holder of the original work.

Public Domain

If the original work you want to use to create your derivative work is in the public domain, then no permission is needed. A work of authorship becomes a public domain when the original author gives up the rights to the work or the copyright expires. Under these scenarios, no permission is needed to use the creative work. The time of expiration of a copyrighted work may vary from one work to another. However, the general rule in the U.S. is that an author retains the copyright to his/her work for life plus 70 years following the death of the author.

Works published anonymously

If the underlying work is published anonymously, the copyright will last for 95 years from publication or 120 years from creation (whichever is shorter). After those time periods, the work enters the public domain.

Copyright Protection For Derivative Works

A derivative work is entitled to separate copyright protection. In other words, the author of a derivative work may also be a copyright holder. The legal interests of the creator of the derivative work are separate and independent from the copyright in the preexisting materials used as the basis for the derivative work. A derivative work is entitled to copyright protection as long as the elements added to the underlying work constitute sufficient contributions so as to warrant the recognition of separate legal protection. 

The following were held to constitute sufficient contributions:

  • An original arrangement of a folk song. 

  • New material contained in a catalog.

  • Selection of scenes from a number of Charles Chaplin films for incorporation in a compilation, in which originality was found in the selection of particular scenes, the order, timing, pacing, and theme. 

Regarding the scope of the copyright protection for the derivative work, it covers only the additions, changes, or other new material appearing for the first time in the derivative work. Regarding the copyright interest in the original work, the protection of the derivative work will not affect the copyright protection, status, scope, or duration of the copyright held in the preexisting work. The new copyright will not imply any rights in the preexisting material unless permission has been granted to create the derivate work. Derivative copyright protection will not extend to any preexisting material, like previously published or previously registered works, or works in the public domain.

This means that copyright right law does not allow you to extend the length of a copyright in pre-existing material just by creating a derivative work. You can register a copyright claim in a derivative work online through the U.S. Copyright Registration Portal, where you will be required to provide information regarding the previous registration of the preexisting material used in creating the derivative, the year the derivative work was created, and a description of the new material added to the derivative work. 

Derivative Works v. Collective Works 

A common issue regarding copyright in derivative works is the determination of who is the copyright owner. Here it is important to distinguish derivative works from collective works. Under Section 103(a) of the Copyright Act, collective works are independent and separate works in themselves that usually involve the coordinated efforts of one or more authors and may include materials protected under copyright and materials not necessarily protectable under copyright. A collective work is usually a compilation or collection of several pre-existing works. In contrast with a collective work, a derivative work takes a pre-existing work and transforms it.  Collective works are periodicals, anthologies, or encyclopedias, etc. 

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