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What You Should Know about Copyright Protection and Infringement

Q:   What is copyright protection?
A: 
 Copyright refers to laws that protect the qualifying works of a creator, such as an author or an artist. Only tangible works such as books, paintings, musical compositions and sound recordings may be copyrighted. Copyright protection does not extend to any ideas, concepts, discoveries or processes that may be embodied in a work. 

Q:  Who owns the copyright in a work?
A: 
 Copyright initially belongs to the author(s) of a work.  An employer normally is considered the author of and owns the copyright in a “work made for hire” if the work was prepared by a regular employee within the scope of his or her employment.  Specific types of commissioned works also may be works made for hire if the parties expressly agree to that in a written, signed agreement. Copyright ownership also may be transferred to another party with a written, signed agreement; such a transfer should be submitted to the Copyright Office.

Q:   If I write a song or a book, what rights do I have?
A:
   As your work’s copyright owner, you generally have the exclusive right to: (1) reproduce your work, (2) prepare derivative works (new works based upon your original work), (3) distribute copies to the public, and (4) publicly perform or display your work.

Q: What is copyright infringement?
A: 
 Copyright infringement is a violation of the copyright owner’s exclusive rights.  For example, someone who prints copies of your painting on greeting cards would be infringing your copyright unless you gave the printer a license to reproduce your painting.  Under certain circumstances, copyright infringement may be a criminal offense.

Q:   If I can prove that someone infringed my copyright, how will I be compensated?
A: 
 The court may issue an injunction ordering the infringer to immediately stop the infringing conduct.  The court also may order that the infringing works be destroyed.  You may choose between recovering “actual damages” (such as lost profits from lost sales) plus the infringer’s profits on the infringing works or “statutory damages” of $750 to $30,000 per work.  Statutory damages may be increased if you can show the infringement was willful, or damages may be reduced if the infringer can show he/she was unaware and had no reason to believe a copyright was being infringed.  In many cases, courts may also award the winning party court costs, including reasonable attorney’s fees. 

Q:   Must I register my copyright with the United States Copyright Office?
A: 
 You automatically own the copyright in your work, whether or not you register it. However, registration does carry a number of advantages.  For example, in most cases, you must register your copyright before you can file a suit against a copyright infringer. You may wait to register your work until you learn of an infringement, but if you take this approach, you will not be entitled to certain remedies (for example, certain monetary damages) that you might otherwise recover upon winning a copyright infringement suit. 

Q: What is copyright notice?
A:
   You can use a copyright notice regardless of whether your work is registered with the Copyright Office.  Copyright notice should generally include the © symbol (or the letter “P” enclosed in a circle for a sound recording), the year of first publication and your name (for example, © 2010 Bob Smith).  For works first published on or after March 1, 1989, use of a copyright notice is optional.  However, omitting copyright notice from a work first published before March 1, 1989 could result in the loss of copyright protection. If you use a copyright notice, you may also prevent a defendant in a copyright suit from proving that he or she was an innocent infringer, which could limit the amount of money you are entitled to recover as the copyright owner. 

7/19/2010   

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA).  It was prepared by Emily M. Judge, an attorney in the Cincinnati office Dinsmore & Shohl LLP, whose practice focuses on intellectual property issues, including copyright and trademark law.  

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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