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Copyright Fundamentals

By Ian Jay Kaufman[*]

Copyright is fundamental area of intellectual property law that is vitally important, not only with respect to works authored by individuals, but for the myriad types of works produced by companies of all sizes. It is also an area, like trademark law, with a long tradition and an evolving present that reflects the global trends toward harmonization of territorial laws as well as the continuing need to apply and adapt copyright principles to new technology. Although it is beyond the scope of this very brief note to deal with copyright law in much detail, selected aspects of this body of law are considered here, which make clear the complexity as well as the usefulness of copyright law. Indeed, trademark, patent and copyright constitute interrelated, yet distinct, approaches meant to foster and protect intellectual property in its various forms.

England’s Statute of Anne, enacted in 1710, is often cited as the beginning of copyright law as we know it today although the idea of protecting written expression, either from the vantage point of the author/creator and/or a from the perspective of the publisher/company predates even that and the importance of copyright law has grown tremendously over the years.

Like trademark law, copyright is largely territorial in nature. There is no complete “international” law of copyright. Each country sets forth its own substantive and procedural rules with respect to the protection and use of works in their respective jurisdictions. Thus, it has often been the case in the past that works would be protected in one jurisdiction, but not in another. The United States, for example, “pirated” numerous British works in the 17th and 18th centuries when British copyright was not recognized in the U.S. [2] Similarly, there were no copyright relations to speak of between the U.S. and the former Soviet Union for many years, and works of one country were unprotected in the other country.

However, reflecting the growing desire and awareness to protect and commercially exploit copyrighted works, bilateral treaties have been entered into by various nations. In addition, there have been international copyright agreements and attempts to harmonize national copyright laws. The most important international copyright treaty is the Berne Convention. [3] Over 140 countries are now signatories to this Convention, which was first signed more than a century ago and reiterates certain core copyright rights, such as the right of reproduction, etc., to be enjoyed by authors regardless of nationality. The Convention also provides for minimum terms and moral rights, while emphasizing an author’s rights, all without the need for formal national registration systems.

Although the precise definition of copyright may differ somewhat globally, the U.S. Copyright statute is fairly indicative. It provides copyright protection for original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Copyright law does not protect the short phrase or title, which remains subject to protection under principles of trademark law. Copyright does not protect processes, methods, discoveries, etc., which are capable of protection under patent law. [4] Also, while it is not mandatory to register a work in order to secure copyright, it is necessary to file a copyright registration in order to proceed with an infringement action in the United States and, for U.S. and foreign works, to obtain statutory damages and attorney’s fees. [5]

The United States, as with many countries, sets forth examples of what kinds of works are protected, such as the following:

literary and textual works;
musical works, including accompanying lyrics;
dramatic works, including any accompanying music;
pantomimes and choreographic works;
pictorial, graphic and sculptural works;
motion pictures and other audiovisual works;
sound recordings; and
architectural works.

It should be stressed that works need not have literary value to be protected. The quality of the work is not an issue. Thus, simple commercial text or labeling is at least potentially protectable under copyright. For example, copyright registrations may be filed for at least certain kinds of logos and for advertising artwork. Elements of collections of either un-copyrightable material or material that is no longer protected by copyright may be protected as compilations, although such protection is quite limited.

The rights protected by U.S. copyright, and to varying degrees in other jurisdictions, include the right of reproduction, right to prepare derivative works, right of distribution (i.e. of copies of works or phonorecords), public performance and the right to display a work publicly.

The rights of a copyright holder are often balanced against the rights of others, often expressed in such concepts as “fair use,” “fair utilization,” etc. The U.S. Copyright Act, for example, codifies the four factors to be considered by courts in deciding whether a use is a "fair use":

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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." [6]

Determining fair use is almost necessarily made on a case by case basis and is one of the most common issues for which clients seek copyright advice and/or result in litigation involving copyrighted works. There have been and are numerous such cases, as, for example, the current well-known litigation in the United States concerning a book titled “The Wind Done Gone,” which used characters and other elements from the book “Gone With The Wind” by Margaret Mitchell, relying upon, and thus far succeeding in, a claim of fair use. [7]

Unlike trademarks, and more like patents, copyrights are limited in duration. Historically, copyright terms were quite short, but they have increased over the years, especially during the 20 th century. The Berne Convention provides, for example, works to be protected for a minimum of life of the author plus 50 years. The European Community enacted a directive in 1993 by which the copyright term in its member countries has been extended to life of the author plus 70 years. Other countries may follow variations of the 50 or 70 year term, including India, whose current term of copyright is life of the author plus 60 years. Indeed, the last twenty years or so has witnessed a dramatic extension of copyright terms in the United States and the European Union, many with retroactive application that can make utilizing the works of others in different jurisdictions quite a daunting task.

The United States presents a particularly complicated situation in determining copyright terms. Unlike Berne-member and most other countries, in the United States, prior to its major 1976 Copyright Act, as well as its accession to Berne in 1989, copyright protection commenced on the date of publication and was subject to a rigorous system of formalities, such as mandatory copyright notice and registration. For works created since 1978, the generally applicable term of copyright in the United States is life of the author plus 70 years except for works made for hire, anonymous works and pseudonymous works, whose copyright duration is 95 years from publication or 120 years from creation, whichever is shorter. For works created before 1978 and governed by the Copyright Act of 1909, the U.S. employed dual terms of 28 years each, requiring initial and renewal registrations by the proper parties in order for the copyright to be effective. These terms were later also subject to extensions, such that, for many years, the rule of thumb for determining whether a work was in the public domain was publication plus 75 years. Clearly, it is useful to have guidance through this patchwork of terms for these older U.S. works.

The primacy of the author is central to the vision of copyright articulated in the Berne Convention. Generally speaking, under Berne and the laws of the vast majority of countries, authorship as an initial matter vests in the actual “flesh and blood” person who created the work. It is common, for example, even for the authors of cinematographic works to be defined as being authored by the primary individuals who actually made the motion picture, such as the director, etc. [8]

The most significant departure from this basic principle is the concept of a work for hire, which is most recognized and utilized in the United States, particularly with respect to the motion picture industry. For many years, U.S. works created at the “instance and expense” of a commissioning party were likely to be deemed as works made for hire. The 1976 Copyright Act, for the first time, specifically defined a work made for hire, as follows:

a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work for hire.

The Act does not define “employee” or “scope of his or her employment.” Those terms have been left for the courts to interpret. [9]

Of course, authors can and do assign the rights in their works to others. However, under the work for hire concept, the hiring party, e.g. a corporation, controls the rights as an author and such rights are not subject to statutory termination rights, which exist under United States law. These termination rights enable an author to terminate rights in a work many years after the work is completed. Even as to assignments, the documents conveying copyright and other intellectual property rights, such as trademark or patent, must be done in accordance with the requirements of the various jurisdictions. Therefore, it is important for companies to incorporate assignments and/or work for hire language in the employment and independent contractor agreements it may use.

It should be pointed out that India also incorporates work for hire principles into its Copyright law, particularly with respect to motion pictures. [10]

Text, images and any other material and/or objects that can be represented in a digital environment are more readily available to be used by others than ever before. Copyright law has also been at the center of the controversies involving the Internet, such as the litigation over Napster and other on-line music providers. Legislation has also addressed copyright in the digital arena, including the Digital Millennium Copyright Act (DMCA) which provides protections concerning the anti-circumvention of technological copyright protection systems, fair use in the digital environment, and online service provider liability for the acts of third parties subscribing to their services. Reflecting the trend toward harmonization of intellectual property rights is the EC Directive on Copyright and Related Rights in the Information Society, 2001/29/EC. This proposal is aimed at extending copyright protection in the member states, with respect to rights of reproduction, distribution, etc. Member states have until December 22, 2002 to implement the Directive. Although the directive does not call for radical change in copyright law, with many countries already providing equivalent rights, the implementing legislation for this Directive in the member states bears watching over the coming year.

In addition, in some countries, other than certain instances in the United States, the author of a copyrighted work, and at least his or her heirs, also have certain moral rights, adroit de moral , in addition to the “economic” rights of a subsisting copyright. Thus, for example, although the copyright in the motion picture “The Asphalt Jungle” belonged to the motion picture production company, the heirs of the director of the film were able to prevail ultimately in litigation brought against the colorization of the motion picture in France. Similarly, a U.S. publisher, which was the assignee of rights in the musical composition “The Rite of Spring,” attempted to assert moral rights against the inclusion of the music in a videotape version of Walt Disney’s “Fantasia.” The U.S. court, applying French law under U.S. conflict of law principles, rejected the claim, ruling that the plaintiff lacked standing to assert the claim because the plaintiff was not an heir.

The world of copyright is developing at a rapid pace, and those wishing to protect their rights must stay abreast of new changes in the laws throughout the world, whether through counsel or in-house. As part of the primary triumvirate of intellectual property rights, it is important that business decision-makers keep a steady view to the continuing development and harmonization of copyright laws worldwide.


As business continues to expand globally, it becomes increasingly important for business owners to secure experienced counsel to establish and safeguard their intellectual property rights, particularly with respect to their trademarks, service marks, trade/company names, domain names, geographical indications, copyrights, patents, etc.

There are various trans-national treaties and numerous procedures dealing with such intellectual property rights. Harmonization of these treaties and procedures, in terms of the underlying principles and specific mechanisms, continues to occur, aiming to increase the scope, predictability and ultimate fairness of intellectual property law and administration. However, despite significant advances in achieving these goals over recent years, the continually, and often rapidly, changing legal and technological landscapes present ongoing challenges to business owners who desire to protect their intellectual property rights. Informed and diligent legal guidance, therefore, becomes a vital element in succeeding commercially in our ever evolving world marketplace.

[*] Ian Jay Kaufman, a resident partner in the New York office of the multinational law firm Ladas & Parry, has written extensively on intellectual property issues. The author acknowledges the assistance of Michael D. Stewart, Esq. and Joseph G. Walsh, Esq., associates in Ladas & Parry’s New York office, in the writing of this paper, which was first presented by Dr. Kaufman at conferences held in New Delhi & Hyderabad, India in January 2002. Copyright Ian Jay Kaufman 2001. All Rights Reserved.
[2] Pursuant to the International Copyright Act of 1891 (The Chace Act), the United States concluded bilateral copyright agreements with France, Switzerland, the United Kingdom and Belgium in 1891, with Germany and Italy in 1892 and with many other countries over the years.
[3] The Berne Convention for the Protection of Literary and Scientific Works, 1886 (as amended, in Stockholm in 1967 and in Paris in 1971) (U.S. acceded to Convention in 1989). Other international treaties include the Universal Copyright Convention in 1952 (Geneva, 1952, with later revisions), to which the U.S. was signatory and prime advocate before the U.S. finally joined the Berne Convention. It is similar to the Berne Convention, but requires certain copyright notice formalities. Although these and similar agreements undoubtedly increased the level of harmonization in copyright law internationally, there continues to be an interplay between national legislation and the various bi-lateral and pan-national treaties, which must be accounted for, depending upon the circumstances. See also Convention of Buenos Aires of 1910 (U.S. and Latin America).
[4] See, e.g. Baker v. Selden, 101 U.S. 99, (1879) (copyright protection available only for particular expression of idea, not for the idea itself) (case involved a book explaining new system of bookkeeping and including certain blank forms).
[5] Of interest, during fiscal year 2000, the U.S. Copyright Office received 588,498 claims to copyright covering more than 800,000 works and registered 515,612. The Office also recorded 18, 894 documents covering hundreds of thousands of titles. Statement of the Register of Copyrights before the Subcommittee on Courts, the Internet and Intellectual Property. May 2001.
[6] See, e.g., Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994) (“...the more transformative the new work, the less will be the significance of the other factors, like commercialism...); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Sony Corp. of America v. Universal City Studios, Inc, 464 U.S. 417 (1984); William Patry, The Fair Use Privilege in Copyright Law (1985); Pierre Leval, Toward A Fair Use Standard, 103 Harv. Law Rev. 1105 (1990).
[7] See, e.g., Suntrust Bank v. Houghton Mifflin, 268 F.3d 1165 (11 th Cir. 2001).
[8] See Article 2(2) of Council Directive (93/98/EEC) that pertains to the European Community extension of copyright to the 70-year term, which states, in part, the following:
The term of protection of cinematographic or audiovisual works shall expire 70 years after the death of the last of the following persons to survive, whether or not these persons are designated as co-authors: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.
[9] The most significant decision in this area is the U.S. Supreme Court decision, Community for Creative Non-Violence v. Rei d, 490 U.S. 730 (1989) which utilized the principles of agency law to determine who constitutes an “employer” and “employee,” setting forth various factors to be evaluated in determining who is an “employee” for purposes of the Act, such as the skill required, the source of the instrumentalities and tools, the location of the work, the duration of the relationship between the parties; the provision of employee benefits, the tax treatment of the hired party. Id. at 751
[10] See Copyright Act of 1957, as amended through January 15, 2000 (Section 17 & Proviso thereof); Indian Performing Rights Society v. Eastern India Motion Picture Association, A.I.R. 1977. S.C. 1443 (rights of music in motion picture film to producer absent agreement to the contrary).
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© Copyright 2001 Ian Jay Kaufman - Posted July 2002
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