Areas of Practice > Copyright


In order to become copyrightable, a work must be fixed in tangible medium of expression. § 101. It may be fixed in words, numbers, notes, sounds, pictures, any other graphic or symbolic indicia. It may be in written, printed, photographic, sculptural, punched, magnetic, or other stable form. A live broadcast is protected because it is simultaneously recorded. A work is fixed if the fixation takes place simultaneously. Video games are protected because they are fixed in the computer memory.

We at Lerner Greenberg Stemer LLP can help you register your copyright and we will also advise you on how to properly claim and hold your copyright. You should know that registration is not absolutely necessary. Your copyright is established immediately upon the creation of your work: When you put pen to paper, when you record your song, when you paint that picture, or when you click the camera, you create and claim your copyright. If you wish to enforce it, however, you will have to show a registration from the Register of Copyrights (the Copyright Office).

The United States adheres to the Berne Convention. Since 1978 it is no longer necessary to register your copyright. But, you should always place a copyright notice, whenever possible. Example of a copyright notice: © 2010 Owner

Following is a brief primer on copyright law. We recommend that you peruse the website of the Copyright Office. Their circulars are very helpful.

Originality Requirement
In order to be copyrightable, a work must be original. Creativity is inherent in originality. Originality, however, in contrast with patents, does not include novelty, ingenuity, aesthetic merit. For example, a telephone directory has very limited protection, while a book that is written “from scratch” will likely enjoy full protection. Facts are not copyrightable, compilations are. Facts do not originate from the author. Facts – scientific, historical, biographical, and news of the day – are in the public domain and are available to every person.

Not Copyrightable:
According to the Copyright Office, “[w]ords and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents,” are not subject to copyright. Section 103 of the Copyright Law also does not allow protection for an “idea, procedure, process, system, method of operation, concept, principle, discovery.”

Derivative Works:
A derivative work is a variation or a new-medium-adaptation of an original work. To receive copyright protection, the derivative work must be more than “merely a trivial variation” of original work. The author of the derivative work needs the permission of the original owner who holds the copyright in the original work.

Copyright Infringement
According to Section 106, the copyright owner has the exclusive right to do and to authorize: reproduce in copies or phonorecords, prepare derivative works, distribute copies to public by sale, lending, rental, transfer . . . , perform/display publicly. To prove infringement, the plaintiff must show that the defendant copied from the copyrighted work and that the defendant took more of the copyrighted material than allowed.

Fair Use
Section 107 carves out a wide-ranging exception which allows anyone to make fair use of the materials. The fair use test has four factors: (1) Nature of infringing work (non-commercial, educational?). (2) Nature of copyrighted work (fact driven, more artistic, exclusively artistic). (3) Amount/substantiality of portion used in relation to copyrighted work. (4) Effect on the market, including potential market (no need to show actual harm). All four factors must be taken into account.

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