Copyright Practice

The Constitution of the United States provides:

Art. I, § 8. [I] The Congress shall have the Power... [8] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;...

Copyright protection is one of the most commonly used and valuable forms of intellectual property protection. For example, the copyright laws prohibit the copying of particular motion pictures, recorded music and computer programs without permission of the owner. Thus, the copyright owner of a popular copyrighted work can exclusively offer it for sale or license and make a handsome profit. As with the patent laws, the copyright laws exist pursuant to the Constitutional mandate set forth above. Congress enacted the first Copyright Act in 1790 with many subsequent revisions through the years. Current copyright protection, provided by Title 17 of the United States Code, is given to authors of original works of authorship, including literary, dramatic, musical, artistic and certain other intellectual works.

In general, the Copyright Act gives the owner of a copyright the exclusive right to:

1. Reproduce the copyrighted work;

2. Prepare derivative works based upon the copyrighted work;

3. Distribute copies of the copyrighted work to the public by sale or other transfer of ownership;

4. Perform the copyrighted work publicly; and

5. Display the copyrighted work publicly.

Copyright protection exists from the time a work is created in fixed form; that is, it is an incident of the process of authorship. In other words, copyright is secured automatically when the work is created, and the work is created when it is fixed in a tangible form. The copyright in the work of authorship immediately becomes the property of the author who created it. Only the author, or those deriving their rights through the author, can rightfully claim copyright.

Copyright protects original works of authorship that are fixed in tangible form of expression. Copyrightable works include the following categories:

1. Literary works;
2. Musical works;
3. Dramatic works;
4. Pantomimes and choreographic works;
5. Pictorial, graphic and sculptural works;
6. Motion pictures and audio-visual works;
7. Sound recordings; and
8. Architectural works.

The above categories are generally viewed quite broadly. For example, computer programs may be registered as literary works, while maps and architectural plans may be registered as pictorial, graphic and/or sculptural works.

It is important to note that copyright ownership does not necessarily provide the owner with the right to use the copyrighted work; it is only the right to prevent others from using the work. It is possible that someone else may have a prior superior right in certain elements of a subsequent work. Copying a copyrighted work without permission is illegal. A copyright owner who has met the various statutory formalities may sue an alleged infringer in federal court and recover civil damages from the infringer.

Dilworth & Barrese, LLP has extensive experience in counseling clients about copyrights. We prepare, file and prosecute copyright applications in the United States Copyright Office and assist our clients in negotiations regarding charges of infringement and licenses. When necessary, we prepare cease and desist letters and represent our clients' interests in court. Our record of success in copyright matters is one to be proud of.