HOW TO GET A COPYRIGHT Copyright 1989 C. Garvey Permission is granted to reproduce and distribute this text file in its entirety in any media. If you want to reproduce only part of it, you must get my permission. You must include the copyright notice and my name, address, and phone number on all repro- ductions. AUTHOR The author, Christopher B. Garvey, is an attorney specializing in patents, copyrights and trademarks with the firm Nolte, Nolte and Hunter, P.C., 350 Jericho Turnpike, Jericho, New York 11753, telephone: 516-935-0180. INTRODUCTION The question "How do I get a copyright?" pops up often on these bulletin boards. This text file is an attempt to provide some guidance in obtaining a copyright. The most important advice in this file is: "Always use a copyright notice". INTELLECTUAL PROPERTY Copyrights are a form of intellectual property. You know about other types of property: real property includes real estate, buildings, land; personal property includes your watch, your pen, your car. One of the most valuable types of property is an intangible one -- a property created by the mind, including inventions, books, pictures and names. Such property is created by the intellect; hence the term "intellectual property". People often confuse patents, trademarks and copyrights, so I'll also briefly tell you what a patent is and what a trademark is. PATENTS A patent is a piece of paper given to you by the government that gives you the right to sue people to prevent them from making or using or selling whatever it is that you invented. Inventions are properties that didn't exist before somebody invented them -- the instant camera, the plain paper photo-copier, nylon fibers. There were no such things in the 1800's, but modern inventors gave these inventions to the world. They created new devices and processes, and in return the government gave each of these inventors a monopoly on the making, using and selling of his invention for seventeen years. That monopoly, the right to exclude others from making, using or selling the invention, is a reward for giving us the knowledge of how to make or use that thing, which didn't exist before its inventor created it. Without patents, inventors could protect their inventions only by keeping them secret. (An invention, kept secret, might be a trade secret, which, by the way, can be one more form of intellectual property.) Secrecy is of course not possible when the invention can be observed in a device that is marketed. Secrecy can better protect processes, substances or circuits and mechanisms not clearly evident by inspection. A patent may be obtained on any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof [35 USC Sec. 101]. In addition to being new, the invention must not have been obvious at the time it was invented. [35 USC Sec. 103]. You can't get a patent on a name or on your novel. COPYRIGHTS Another type of intellectual property is a copyright. A copyright is a monopoly that's given to an author of some original work. By a monopoly, I mean a right to sue others: to prevent them from copying, distributing, or performing the copyrighted work or derivative works; or to collect damages; or both. You can't copyright an idea but you can copyright an original expression of an idea -- something that has been put on paper or made tangible -- something that other people can look at or read. For example, you can get a copyright: if you write: a book, a poem, or if you create: a painting, a sculpture, a photograph, a movie; or if you write: a play, a computer program, a song; or if you record a song; if you lay-up an advertisement; or if you create a semiconductor chip. If you have a copyright, some imitator can't come along and make money by selling unauthorized copies of your book in competition with you, without risking being sued. TRADEMARKS Trademarks and service marks are words, symbols or devices which indicate a source of origin for goods or services. You can't copyright a name or a slogan but you can obtain a trademark on it. You acquire trademark rights by using your mark in commerce. Registering the mark provides some evidence and notice of your trademark rights. A fuller discussion of trademarks may be found in the file TRADEMRK.ZIP, which I have also uploaded to this bulletin board. The purpose of patents and copyrights is, according to Article 1, Section 8, of the Constitution, "To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Trademarks are common law rights with a purpose of preventing customer confusion as to who supplies products and services. HOW TO GET A COPYRIGHT The most important step in obtaining a copyright is the placing of a copyright notice upon the work, whenever the work is published by authority of the copyright owner. If you fail to place a copyright notice on publicly distributed copies from which your work can be visually perceived (perceived either directly or with the aid of a machine or device) you will probably lose your copyright. 17 USC Chapter 4. (If you have published already without a copyright notice, consult your attorney. There may be a way to save your copyright. See 17 USC Section 405.) Fortunately, it is very easy to comply with the notice requirement. The statute [17 USC Sec. 401(b)] states that: "The notice appearing on the copies shall consist of the following three elements: (1) the symbol consisting of the letter "C" in a circle, or the word "Copyright", or the appreviation "Copyr."; and (2) the year of the first publication of the work;...and (3) the name of the owner of the copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner." For example: Copyright 1989 C. Garvey 17 USC Sec. 401(c) tells you where to put your copyright notice: "(c) Position of notice--the notice shall be fixed to the copies in such a manner and location as to give reasonable notice of the claim of copyright." You will observe that at the beginning of this text file I have placed a copyright notice which complies with the above requirements. Placing this notice on the work is all I have to do to obtain my copyright. Having done so, I will now be able to take steps to stop any unauthorized duplication of this work. However, since my purpose in writing this work is to educate people, I have granted permission to reproduce the file. But, since I don't care to have my words distorted, I have required that any reproduction must be of the complete file. It costs almost nothing to put a copyright notice on a work. If you publish without such a notice you can forfeit all your rights to control your work. Why would anyone publish anything without including a copyright notice? I can't think of any good reason. You can always grant permission, even in the work, to use your work under terms that you specify. This text file and many of the programs posted on computer bulletin boards are examples of copyrighted works which include permission for reproduction. Even if you don't intend to make any money from your copyrighted work, its a good idea to own the rights in your work so that you can prevent people from distorting your work and using it for purposes of which you may strongly disapprove. For example, if someone used your copyrighted computer program as a carrier for a virus, you could sue him for copyright infringement. REGISTRATION OF THE COPYRIGHT It's a very good idea to register your copyright with the Register of Copyrights. Registration is not a condition of copyright protection. If you don't register, you still own your copyright. However, registration only costs $10.00 and has certain advantages. First of all, registration is a prerequisite to an infringement suit. In other words, you can't sue someone who is infringing your copyright until you have registered your copyright. Furthermore, there are certain remedies which are only available with respect to infringements made after registration. The statute [17 USC Sec. 412] states that: "no award of statutory damages or of attorneys fees, as provided by Sections 504 and 505, shall be made for - (1) any infringement of a copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work." Actual damages, if you can prove them, are still available with respect to pre-registration infringements. Statutory damages are different from and can be in addition to actual damages. Another reason to register a copyright is that the law [17 USC Sec. 407] requires the owner of the copyright to deposit within three months after the date of publication: "(1) two complete copies of the best editions; or (2) if the work is a sound recording, two complete phono records of the best editions, together with any printed or other visually perceptable material published with such phono records." The law provides that the Register of Copyrights may make a written demand for the required deposit on any persons obligated to make the deposit. If you fail to respond to such a demand, you may be liable to a fine of not more than $250 for each work or a fine of $2,500 if you repeatedly fail or refuse to comply with such a demand. Registration is simple. You can have it done by your attorney. Our firm charges $278 at the time of this writing for filing a copyright registration. This reflects the amount of time it takes for us to fill out the form with information that we must obtain from you. But, it's simpler and far less expensive to fill out and submit these forms yourself. You can obtain the forms by calling the copyright forms hot line at 202-707-9100. The Copyright Office will be happy to send you the forms and instructions. TEXT If you your work is primarily text, ask for form TX, with instructions. ART If your work is primarily in the visual arts, such as a sculpture or picture, ask for form VA, with instructions. TEXT AND ART Many works are combinations of visual arts and text. Make a determination yourself as to which aspect of the work predom- inates and ask for that form. The Copyright Office is unlikely to be too critical about your choice of forms. PERIODICALS If you are creating a periodical such as a magazine, newspaper, or a weekly bulletin to be posted on a computer bulletin board, ask for form SE, with instructions. The SE stands for serial. PERFORMING ARTS Ask for form PA with instructions for registration of published or unpublished works of the performing arts. Works of the performing arts include: (1) musical works, including any accompanying words; (2) dramatic works, including any accompanying music; (3) pantomimes and choreographic works; and (4) motion pictures and other audio visual works. SOUND RECORDINGS Ask for form SR, with instructions, for copyright registration of published or unpublished sound recordings. By the way, the required copyright notice for sound recordings differs slightly from the notice on other works. Under 17 USC Sec. 402(b): "The required form of a notice for phono records of sound recordings consists of three elements: (1) a symbol consisting of the letter "P" in a circle; (2) the year of first publication of the sound recording; and (3) the name of the owner of the copyright in the sound recording..." SEMICONDUCTOR CHIPS Semiconductor chips are copyrightable [17 USC Chapter 9]. The copyright duration is ten years [17 USC Sec. 904]. Registration is required within two years or protection terminates [17 USC 908]. There are special notice requirements [17 USC Sec. 909]. HELP As government publications go, the copyright forms and instructions are remarkably clear and self-explanatory. The Copyright Office is also helpful in answering some of your questions. For others, they will refer you to a lawyer. Their copyright information specialists can be called at 202-479-0700. Circular R2B, available from the Copyright Office, comprises selected bibliographies on the subject of copyrights. PUBLICATION 17 USC Section 101 states: "'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display, constitutes publication. A public perform- ance or display of a work does not of itself constitute publication." UNPUBLISHED You should register published works and you may register unpublished works. You might register an unpublished work to create an official record of your authorship prior to submitting the work to publishers. When registering an unpublished work, you need only deposit one complete copy of the work with your registration. Where the work has been published, deposit two complete copies of the best edition of the work. Under 17 USC Sec. 402(c): "(c) Position of Notice - The notice is to be placed on the surface of the phono record, or on the label or container, in such manner and location as to give reasonable notice of the claim of copyright." DURATION On a work created on or after January 1, 1978, the copyright lasts for the life of the author plus fifty years [17 USC 302(a)]. If the work is anonymous, or written under a pseudonym, or written for hire, the copyright lasts seventy-five years. REMEDIES Copyright law is very plaintiff oriented, and judges usually have great sympathy for authors who have been ripped off. If you believe that someone has made unauthorized use of your copy- righted work, contact a lawyer, preferably one who specializes in areas of intellectual property. In many cases, copyright infringers will cease their infringement as soon as the copyright owner or his attorney confronts them. An infringer may pay you for past infringement in order to avoid or settle a suit. If you sue him, you may collect damages and obtain a court order that he stop infringing. CONCLUSION Of course, there's more to copyright law than can be covered in this brief discussion. My purpose in this article is primarily to help you secure a copyright. If you have any questions, you may call me. In closing, I repeat that the most important step in obtaining a copyright is affixing a copyright notice to your published copies. The copyright notice will probably prevent unauthorized copying of your work. If it doesn't prevent infringement, it will enable you to sue for an injunction (to stop the copying) and for money damages. Remember the copyright notice. ["17 USC" refers to Title 17 of the United States Code] ["35 USC" refers to Title 35 of the United States Code] Graciously supplied by Double Helix BBS 1 (212) 865-7043......2400 N81N Listed by KeelyNet BBS 1 (214) 324-3501......2400 N81N