Copyright

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Reasons a work might not be protected by copyright

  • It is not original
  • It is not fixed in a tangible medium
  • The copyright term has expired
  • It was dedicated to the public domain by the owner

How do I create a copyright in my work?

Copyright is vested in a work of original effort as soon as some aspect of the work is fixed in a tangible medium.

Does copyright give me the right to sell or distribute my work?

No, it gives you a limited right to prevent others from doing so. Limits on an author’s or artist’s right to publish a work may arise from obscenity law, rights of privacy and other regulations.

Additionally, limited reproduction of your work may be permitted under the fair use doctrine for educational or criticism purposes.

I think someone stole my copyrighted idea

While you may feel violated, ideas and facts are not protected by copyright. It is the expression of ideas that is granted copyright protection.

For example, a similar character or plot found in another literary work will not likely be infringing. It is the words used to tell the tale, that, the expression, that is protected by copyright. Similarly, an algorithm or function of a software program is not protected by copyright, however, the code written to accomplish the function may be protected.

How do I obtain foreign copyright protection?

Including a copyright notice on published works will help secure copyright protection in most countries under international treaties.

What is the test for copyright infringement?

The test is “substantial similarity”: whether an ordinary observer would recognize the later work as copied in whole or in part from the earlier work.

Copyright Ownership By Business

Businesses may apply for and own copyrights.  The business will need to be the owner of the copyright.  This is commonly by an assignment or through a work-for-hire arrangement with the author.

Works For Hire

When an employee or consultant creates work for which he is paid, the artist may own the rights to his original works in the absence of a work-for-hire agreement. Our office can provide these agreements for employers and businesses.  A work will be considered a work for hire if it is performed by an employee.

What constitutes fair use?

Section 107 contains a list of the various purposes for which the reproduction of a copyrighted work may be considered “fair.” These "fair uses" include criticism, comment, news reporting, teaching, scholarship, and research. The U.S. Copyright Office's official website explains: " Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. 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 distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."

How should I send my application?

There is no requirement that any particular courier is required. United States Postal Service may be used, including regular mail. It is not necessary to use Express Mail or Priority Mail, but it is prudent to use Proof of Mailing or Return Receipt services. Many people find an advantage to using private courier services (such as Federal Express, UPS and the like) in situations where the registration date is important.

What is my registration date?

The Copyright Office records the applications sent by the United States Postal Service as being received two days earlier than the date of actual receipt at the Office. The receipt of registrations sent by private courier service is recorded by the Copyright Office on the same date they are received.

Do I need to keep a copy of my application and deposit materials?

It is prudent to keep a backup copy of all materials you submit, in case a package gets lost, damaged or destroyed somehow.

Will I get a receipt verifying the Copyright Office has received my application?

No, a receipt is not issued. However, in about 3-4 months (sometimes up to eight months), when your application is successfully processed, you will receive a certificate of registration. If there is a problem with your application, you will get either a letter, phone call or e-mail from Copyright Office staff requesting more information or letting you know why your submission cannot be copyrighted.

Can I register both published and unpublished images on the same form if they were taken in the same 12-month period?

A separate filing is required for published and unpublished works, even if they were created in the same 12 month period.

What do I do if I intend to publish images but am not sure when that will happen?

You can register the images as unpublished works.

You can wait and register them after they have been published. As long as the copyright is registered within three months of actual publication, your rights are protected.

You could publish them and offer them for sale on your own website.

Must I pay a fee for each image?

If you are registering published images using the Continuation Form (Form GR/PPh/CON), you may attach up to 50 continuation forms to one Form VA. That means you can have up to 750 images in each group.

For unpublished images, you don’t use the Continuation Form, and the number is unlimited.

What if I make a mistake in filling out the form?

More than likely, an examiner in the Copyright Office will notice the error and ask you to correct it. This may delay the date of registration but will generally not affect your rights unless you are involved in an infringement suit at the time.

It is prudent to correct error in the application to preserve your rights. Form CA is available to amend a registration for a filing fee of $100. In an infringement action, the defense attorney will likely challenge the copyright’s validity. Mistakes may be problematic. $100 correction fee will be peanuts compared to tens of thousands in attorneys fees defending the validity of a error-containing copyright registration.

Can I register my copyrights online?

Not yet, but maybe in late 2006.

Can I get the forms online?

Yes. However, it is important to note that when you download and print out the copyright registration form from the web site, it comes out on two pages. The Copyright Office won’t accept your application if it’s on two pages. The application will be returned as incomplete. It is important to print the application head-to-head. This means that the tops of each page are on the same end of the paper such that when you turn the page over, the top of page 2 is directly behind the top of page 1.

Can I register with a pseudonym?

You must put a name in Section 4 of Form VA. You can put your pseudonym on that line, but the Copyright Office warns, “if a copyright is held under a fictitious name, business dealings involving that property may raise questions of ownership of the copyright property.” However, if you don’t want your name to appear on the copyright form and want registration in the pseudonym, you should write only your pseudonym in the space that asks for your name, followed by the word “Pseudonym”. It is permissible to use a pseudonym on the work, but your real name for purposes of copyright. In section 2a of Form VA, where it asks for Name of Author, write in your real name followed by “whose pseudonym is” and then the pseudonym. Additionally, in the same section, check the box next to “Pseudonymous”.

On the Short Form VA, you should write in your real name, then include your pseudonym followed by “pseud.”

How do I submit my digital images for copyright registration?

The Copyright Office will accept CD-ROMs and DVD-ROMs as deposits for registration (but no floppy disks). (Low-resolution JPEG is the preferred graphic format, as opposed to GIF or TIFF.) You may, but are not required to, include a “contact sheet” — a page of thumbnails- to display and identify the contents of the CD.

Average Copyright Registration Costs and Filing Fees

* The following costs are provided for reference only.  Please contact our office for a fee quote for your situation.

Legal Fees for Copyright Registration of Product Brochure, Packaging Artwork, a Literary Work, Drawings or Photograph (call for software registration fee quotes) - $295

In some cases, we can include more than one related digital or graphic image, photograph, drawing, artwork, and article in a single filing as a collection.

Includes:

  • 2 hours consultation (1-2 meetings)
  • Execution of all paperwork (1 meeting)
  • Preparation of Formal Filing Papers for United States Copyright Office
  • Review of Registration Certificate for deficiencies
  • Ancillary Documents and Services

Disbursements

Filing of Copyright - approx. $50

Postage for Express Mail - approx. $15

Contact Information:

Visit our office at

2775 Buffalo Road, Suite 3,
Rochester, NY 14624
 (585) 247-9170
Fax: (585) 247-9171

Postal Address:

Law Offices of
Tracy P. Jong

2775 Buffalo Road, Suite 3,
Rochester, NY 14624

Electronic Mail:

Tracy Jong:

For inquiries related to patent drawings, call (585) 615-5240 or e-mail

To speak to a paralegal, call (585)247-9170 or e-mail