Usually, determining whether something can be copyrighted is easy. Books, movies, and songs are copyrightable. Artistic drawings, paintings and photographs are also copyrightable.

When you start moving towards more technical works and drawings, it can become a little trickier. Generally speaking, drawings, photographs, and other two-dimensional and three-dimensional expressions that visually depict three-dimensional objects are copyrightable.

At the Trademark USP, we can help you copyright your:

• Written work such as fiction, nonfiction, poetry, textbooks, reference works or articles
• Directories or catalogs, advertising copy
• Computer programs
• Website or online materials
• Photograph
• Art Work
• Maps
• Technical Drawings
• Recorded performance of music or sound
• Written music & Lyrics, Screenplay or script
• A Choreographic work
• A recorded score for a movie or play
• Feature film, documentary film, animated film, television show, video, or other Audi-Visual Work

Because the U.S Copyright Office does not allow electronic filing for certain types of works, we do not offer services at this time to help you copyright your:

1. Group of Serial Issues;
2. Group of Newspaper Issues; or
3. Group of Newsletter Issues.

The three main types of intellectual property protection serve different purposes:

• A trademark generally protects a word, phrase, symbol and/or design that distinguishes the source of the goods -- what we think of as brand name and brand recognition.
• A patent generally protects an invention, including the functionality or design, or in other words, “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101.
• Copyrights, meanwhile, generally protect artistic works such as books, photographs, arts, movies and music.

The law in the United States provides that you are granted a copyright in your work the minute you create it regardless of whether you register your work. Assuming your work is original and has a basic amount of creativity, you may claim ownership and protection.

The problem is without registering, you have an incomplete form of protection in that you cannot enforce your rights in a court of law in America.

While you do not have to register your work in order to receive copyright protection, registration will guarantee you several additional protections including:

• The ability to file a lawsuit: If your work is not registered with the copyright office, you cannot file suit for copyright infringement.
• Statutory damages: If not timely filed, you cannot sue for statutory damages. You would therefore have to prove that someone’s copying of your work caused you actual damages that you can calculate and tie to the infringement of the other person.
• Protection from imported infringing copies: Registration also allows you to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
• Firm claim of ownership: Registration makes it more difficult for infringers to argue that they were unaware of their infringement as it acts as a notice to everyone that you own the copyright.
• Image of Establishment: In some industries (such as film scripts), registration of copyright is a prerequisite to get some people (like agents) to take you seriously.

If you timely file your copyright, U.S. law allows you to recover statutory damages. Sometimes, it is difficult to directly tie the infringement of your work to a lost profit and therefore, you may want to seek statutory damages instead. Other times, the actual damage caused by the infringement is small, but statutory damages make the pursuit of a lawsuit more economically viable.

In the U.S., statutory damages range between $750 and $30,000 per infringed work in the discretion of the judge. If you can show “willful” infringement by the defendant, then you may be able to recover up to $150,000 per work. Meanwhile, if the defendant can prove they are an “innocent infringer”, then the court may reduce the statutory damage to as low as $200 per work.

To be able to recover statutory damages, you have to register your work with the U.S. Copyright Office prior to infringement or within three months of publication.

Generally speaking, the owner of a copyright has the right to do the following:

• Reproduce copies of the work
• Prepare derivative works
• Distribute copies
• Perform the work publicly either in person or recorded
• Display the work publicly

To prove a copyright infringement, a copyright owner must establish:

1. The ownership of a valid copyright
2. Factual copying: Factual copying can be proved by direct or circumstantial evidence. To make a circumstantial claim, the copyright owner must prove that (1) the infringer had access to the copyrighted work before creation of the infringing work and (2) the works contain similarities that are probative of copying.
3. Substantial similarity: The copyright owner must show that the copyrighted expressions in the two works are sufficiently alike that the copyright to the original work has been infringed.

In most cases, a copyright lasts for the life of the author plus 70 years. If the author of the work died in 2070, then the copyright, in most situations, would last until 2140.

For works made for hire, and for anonymous and pseudonymous works, the duration of copyright is 95 years from publication or 120 years from creation (whichever is shorter).

Copyright law may extend to a drawing or design, but not to the actual three-dimensional product depicted in that design.

In other words, you may be able to copyright a drawing of a chair, but generally speaking, copyright law would not allow you to keep people from making copies of the actual chair. The chair is what is referred to as a “useful article” and is not the subject of copyright law.

Copyright law defines a compilation as a “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”

In other words, it could be a unique way a collection of previously produced stories or songs is arranged in a video, or a group of essays compiled together by several writers to be sold as a single book.

Sometimes, you can register a number of works in a single application that protects each individual work, as part of what copyright law calls a collection or "group registration of unpublished works". This traditionally applies to albums, collections of essays or articles, or collections of photographs all created by the same person.

You can file a copyright registration for a “collection” if you meet the following requirements:

• The work must be unpublished and a maximum of 10 works of a similar type of copyright may be submitted per application. For example: 10 poems, 10 photographs, 10 paintings, or 10 audio recordings can be submitted in a single application.
• The elements are assembled in an orderly form.
• Provide a title for each work and submit a separate digital copy of each in a separate digital file.
• You are both the author of the individual elements and the collection as a whole.
• All of the elements are by the same author, or, the same co-authors. In addition, the author and claimant for each work must be the same person or organization.
• They are not works made for hire. For works for hire, you can only submit one work per application.

As part of the copyright application process, you will have to identify the “author” of the work. The “author” is the person responsible for the creation of the work, and the copyright in the work immediately becomes the property of the author.

When there is employment or a payment for someone else to create something, it can get a little more complicated, leading to the concept of a “work made for hire.”

Just because you pay for someone to create a drawing, computer program, or design a website, does not mean you own the copyright to it. To own the work done by someone else, it must be a work for hire, which means:

• Employee: It was created by an employee in the course and scope of their employment. This would cover the programmer working for Google or the illustrator working for Pixar.
• Contractor: When using outside contractors, it usually requires a written contract assigning the copyright or intellectual property rights to the person paying for the creation, in order for the payer to own the copyright.

More specifically, Section 101 of the Copyright Act defines a “work made for hire” as:

1. A work prepared by an employee within the scope of his or her employment; or
2. A work specially ordered or commissioned for use if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

The content, code, and design elements of a website can be copyrighted. You will submit a printed out version of your site and the copyright protection will apply to the version submitted.

Because websites are frequently updated, you may want to submit your revised version of your website, too. Registration of a revised version covers only the new or revised material added.

To be eligible for a copyright, there is a minimal amount of creativity in the work necessary. The hurdle, however, is not high.

The best way to demonstrate is to discuss the U.S. Supreme Court case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). In that case, the Supreme Court said that information alone, such as phone numbers and addresses arranged in alphabetical order alone, do not meet the necessary level of creativity.

Likewise, listing of ingredients in a recipe do not qualify; nor do short phrases which are more likely to be protected by trademark. Raw data and facts are not copyrightable, but if you arrange them and describe them in an original way, your work may be protected.

Databases may be subject to copyright protection if the “automated database” requires effort and creativity to compile the data.

If you re-compile publicly-available data and arrange it in a different way to discuss a trend or other original concept, your work will be protected. The underlying publicly-available data, however, may not be protected.

Through international agreements, many countries will respect your copyright when filed through the U.S. Copyright Office.

For a listing of countries and what rights apply, check out Circular 38a, from the U.S. Copyright Office.

A copyright owner is entitled to statutory fees and attorneys’ fees along with actual damages caused by the infringement.

Actual damages may include lost profits and “reasonable royalty rates,” or what a willing buyer would have been reasonably required to pay a willing seller as a licensing fee for the actual use of the copyrighted material by the infringers.

A copyright owner may also seek “any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.”

Additionally, a copyright owner may be entitled to an injunction to prevent the infringer from copying or selling the infringing materials.

You can file at any time after you complete your work. However, there are certain advantages to timely registering your copyright in a timely fashion.

• Prima Facie Evidence: If you register before or within five 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.
• Statutory Damages & Attorney’s Fees: If you register your work within three months after the publication 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 profits is available.

In other words, if you wait until there is an infringement to register your work so you can have access to the courts, you may lose the valuable right to seek the recovery of statutory damages and attorneys’ fees.

The Fair Use Doctrine allows you to use the copyrighted work of others in limited circumstances. Unfortunately, fair use is not an easy doctrine to understand or determine. If anyone has ever told you that as long you use no more than 20% of someone else’s work, or some other alleged bright line test, they are wrong.

Instead, fair use is a factually-specific inquiry and there is no bright line test. Courts consider these four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or 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.

There are a lot of close calls when it comes to fair use and it is a defense to an alleged infringement.

Copyright law defines publication as the public distribution of copies. It can include distribution by electronic transmission, including over the internet.

The U.S. Copyright Office receives over 600,000 applications per year. It is taking at least nine months for the Copyright Office to review applications at this time.

You can expect a letter, telephone call or email from a Copyright Office staff member if further information is needed.

If your application allows for electronic submission, we will use that functionality. The types of things eligible for electronic submission include:

• Unpublished works
• Work published only electronically
• Published work for which the deposit requirement is identifying material (this usually applies to descriptions of three dimensional works and would include pictures of the work or similar two-dimensional reproductions or renderings of the work)
• Published work for which there are special agreements requiring a hard-copy deposit to be sent separately to the Library of Congress

For works where a hard-copy is required, you will be provided a mailing label to affix to your package and mailing instructions from us.

NOTE THAT YOU WILL NOT GET BACK THE SUBMISSIONS YOU PROVIDE TO THE U.S. COPYRIGHT OFFICE.

Several different parts of a song can be copyrighted.

• The lyrics can be copyrighted separate and apart from the composition. The copyrights can, and often do, belong to different people.
• The recorded version of a song can also be copyrighted with the rights belonging, at least in part, to the performer who is recording the song.

The Trademark USP can help with one or all of these aspects.