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Copyrights protect original works of authorship. A copyrighted work can be, among other things, a literary work, musical work, dramatic work, picture, movie, audiovisual work, sound recording, architectural plans, software code, computer graphics, work of art, advertising or promotional materials, or the selection, arrangement, or presentation of a compilation of facts. Only works that contain original elements may be copyrighted, however, the originality requirement is minimal. A copyright provides its owner with the exclusive right to copy a work, and the owner may also prevent others from preparing derivative works, distributing, performing, displaying, or using the work during the life of the copyright. A copyright only protects those portions of a work that are original. Facts, ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries cannot be copyrighted; instead, a copyright protects only the expression of the facts, ideas, etc. The rules governing the length of a copyright are detailed but, in general, the author of a work that was published, for the first time, on or after January 1, 1978 has a copyright in the work for the length of his or her life plus 70 years. Copyrights arise automatically under the law; however, you must register the copyright prior to being able to sue for infringement. Further, statutory damages are only available if the infringement commenced after the copyright was registered.


Copyright law is aimed at advancing human knowledge and creativity and accomplishes this goal by providing authors with a limited monopoly over the expression of their works. Article 1, Section 8 of the United States Constitution, known as the Copyright and Patent Clause, empowers Congress: “[t]o 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.” In the United States, copyrights are governed by the Copyright Act of 1976, 17 U.S.C. § 101, et. seq.


Copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration offers significant benefits, which include establishing a public record of the copyright claim.

Registration of a U.S. work is necessary before any infringement suits may be brought in the courts and if made before or within five years of publication, it establishes a presumption of the validity of the copyright and the facts stated in the registration certificate. If registration is made within three months after publication of the work or prior to the commencement of infringement, statutory damages and attorney’s fees are available to the copyright owner. Otherwise, the copyright owner may obtain only actual damages and profits.

Registration can be made at any time within the life of the copyright. Typically, two copies of the work must accompany the application.


To prove infringement, one must establish: (a) that he or she is the owner of a valid copyright; and (b) the defendant copied the original elements of the copyrighted work. One is an owner of the work if he or she is the author, joint author, person who assembled independent works into a collective work, person who created a compilation, or is the transferee of rights from an author. A copyright is valid if the work possesses original elements. Since the infringer rarely admits to copying the work, copying is proven by establishing: (a) access to the copyrighted work; and (b) substantial similarity between the copyrighted work and the accused work. Substantial similarity exists if an an average lay observer would recognize that the infringing work was appropriated from the copyrighted work. If there is a striking similarity between the copyrighted work and accused work then a party does not have to prove the defendant had access to the copyrighted work. Depending on the compilation, courts in the Eleventh Circuit may require proof that the order selection and arrangement of the allegedly copied compilation is virtually identical to, as opposed to merely substantially similar to, the copyrighted work.


Companies must properly supervise those of its employees who are permitted to publish information. Indeed, a person or an entity may be found vicariously liable for the copyright infringement of another if that person or entity has a financial interest in the infringement and the right and ability to supervise the infringing activity. The person or entity is liable regardless of whether or not the person or entity knew of the infringement. This means, of course, that companies are frequently liable for their employees’ infringement. Additionally, a person or entity may be found contributorily liable for the infringement if he or she knew or should have known of the infringing activity and either induced the infringement or materially contributed to the infringement.


A copyright owner may license or sell all, or part of, the owner’s bundle of copyrights. The person to whom a right is transferred is called an assignee, if the right was sold, or a licensee if the transferee is merely permitted to use a right. To be valid, the license or assignment, must be in writing. There is no limit to the number of times a copyright owner may license its work. Licenses may, however, be contractually exclusive. Assignments can be recorded with the Copyright Office.


Employees and independent contractors own the copyrights in the works that they author during the performance of their duties. A Work Made for Hire Agreement contractually reverses this rule. Indeed, a Work For Hire Agreement vests all authorship rights in the employer including the right of attribution; i.e., the employer is considered to be the author of the work for hire once authorship rights are relinquished through a work for hire contract provision. For this reason, clients should consider negotiating for a Work Made For Hire clause in their employment agreements and independent contractor agreements. In regards to agreements with independent contractors, frequent problems arise when a party pays for architectural plans or computer code and thereafter terminates the architect or programmer. Without a Work Made for Hire Agreement, the entity who paid for the plans or code cannot hire a replacement to make derivative works to the architect or programmer’s original plans, at least not without the terminated contractor’s consent.


A joint work is a work prepared by two or more authors. Each author must have made a substantial and valuable contribution to the work, although the contribution each author made to the joint work need not be equal; further, each author must have intended that their contributions be merged into inseparable or interdependent parts of a unitary whole; and each author must have contributed material to the joint work which could have been independently copyrighted; that is, each author must have supplied more than mere direction or ideas but instead translated an idea into a fixed, tangible expression entitled to copyright protection without the contributions by the other authors. Each author of a joint work shares an undivided interest in the entire joint work. A copyright owner in a joint work may enforce the right to exclude others in an action for copyright infringement.


The fair use of a copyrighted work is not prohibited. It is statutorily fair to use a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, and these uses are not deemed to infringe a copyright. In determining whether the use made of a work in any particular case is a fair use, courts consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or if it 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work.


The United States adopted the Berne Convention in 1988. Most other industrialized countries have also ratified the treaty. Members of the Berne Union (the union of ratifying countries) must give equal dignity to foreign copyrights and domestic copyrights, and members of the Berne Union must also establish minimum copyright laws. Under Berne, copyrights for creative works arise automatically without the necessity of a registration process. Registration with the U.S. Copyright Office is not a condition precedent to filing suit under the Berne Convention in a United States court, however, attorneys’ fees and statutory damages are only awarded to Plaintiffs, domestic or foreign, who have registered their works with the United States Copyright Office.