Bulletin: SLS00156

This bulletin has been prepared in response to various questions Stewart Legal Services has received regarding copyrights. Copyrights protect "original works of authorship" that are fixed in a tangible form of expression. Protection attaches immediately upon fixation. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device.

CATEGORIES OF COPYRIGHTABLE WORKS

1. literary works (includes books, instruction manuals, computer programs, motion pictures, television shows);

2. musical works, including any accompanying words;

3. dramatic works, including any accompanying music;

4. pantomimes and choreographic works;

5. pictorial, graphic and sculptural works;

6. motion pictures and other audiovisual works;

7. sound recordings and

8. architectural works.

EXCLUSIVE RIGHTS GRANTED TO COPYRIGHT OWNERS

1. To reproduce the work in copies or recording;

2. To prepare derivative works based upon the work;

3. To distribute copies or recordings of the work to the public;

4. To perform the work publicly, and

5. To display the copyrighted work publicly.

Examples of unauthorized uses would include the copying of software beyond the terms of the license or the copying of music without the permission of the copyright owner. Unless such use is permitted by statute, parties using copyrighted material without permission of the copyright owner may be subject to damages.

NOTICE OF COPYRIGHT

A copyright notice is no longer required under U. S. law, although it is often beneficial.

Use of the copyright notice informs the public that the work is protected by copyright, identifies the copyright owner and shows the year of first publication. Furthermore, in the event that a copyright is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such defendant's claim of innocent infringement.

FORM OF NOTICE FOR VISUALLY PERCEPTIBLE COPIES

The notice for visually perceptible copies should contain all the following three elements:

1. The symbol © (the letter C in a circle) or the word "Copyright" or the abbreviation "Copr."

2. The year of first publication of the work; and

3. The name of the owner of the copyright in the work or an abbreviation by which the name can be recognized or a generally known alternative designation of the owner.

REGISTRATION WITH THE U.S. COPYRIGHT OFFICE IS NOT NECESSARY TO OBTAIN COPYRIGHT PROTECTION

1. It is not necessary to register any work to receive copyright protection, but the following are advantages to registering a work with the U.S. Copyright Office:

2. Registration establishes a public record of the copyright claim.

3. Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.

4. If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

5. If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and lost profits is available to the copyright owner.

Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

If you desire to register a work, please contact Stewart Legal Services. The cost to file a copyright is approximately $30, plus any outside legal fees.

WORKS CREATED FOR STEWART TITLE BY THIRD PARTIES

In the case of "work made for hire," the employer and not the employee is considered to be the author. Also for a work prepared under contract, the work shall be considered only a "work for hire" if certain conditions are met; thus, it is important that the contract specifically assign all intellectual property rights, including copyrights, to Stewart Title. Otherwise, if the contract is not carefully drafted, the third party will own the copyright and other intellectual property rights and have the exclusive right to use and to make derivative (modified) works based upon the work product.

For example, many web site developers and designers own the copyrights to web sites they create as independent contractors for web site owners. Therefore, it is IMPERATIVE that when you hire an independent contractor to design or create all or portions of your web site or other creative work, you must have a written agreement that contains the "magic" language by which the creator of the work assigns all copyrights to your company.