Understanding Copyrights: Ownership, Infringement, and Fair Use
Arnold B. Silverman

Copyrights, in general, give the owner the right to keep others from copying all or significant portions of the protected work. A copyright in the United States is governed by federal statute and related regulations and judicial opinions. In general, a copyright comes into existence when one has fixed the work in "any tangible medium of expression." For example, if one writes a book, takes a photograph, or creates a musical work or painting, the work is protected, to a certain extent, automatically upon creation. It would be perfected by obtaining a copyright registration.
Copyrights are relatively inexpensive to obtain and are obtained through a registration system. The applications are reviewed for compliance with the applicable statute and related regulations; there is no search to determine the degree of originality as compared with prior works. Copyrights have a very long term in general, for an individual, the life of the author plus 50 years.
Works for hire are generally works prepared by an employee within the scope of his or her employment. They may also be specially ordered works that fall within one of the following categories: contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplemental work, a compilation, an instructional text, a test, answer material for a test, or an atlas, if the parties agree in writing that the work will be a work for hire. The term is 75 years from the year of first publication, or 100 years from the year of creation, whichever expires first. The employer or the one who ordered the work is deemed to be the author.
Examples of the sorts of works that may be copyrighted are set forth in the statute. These include literary works; musical works, including accompanying words; 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. Computer software is also protectable by copyright. The statute also makes it clear that a copyright is not a substitute for a patent. Copyrights may be obtained for works that have not been published. A work also can be registered as a published work.
The copyright owner has the exclusive right to make copies of his or her work, distribute copies of the work to the public, and make certain modified versions of the work that the law calls derivative works. A derivative work generally contains enough of the original work to be recognizable as having been derived from the original. If the work involves a literary, musical, or dramatic work or a photograph or work of art, the copyright owner has certain additional rights that include the exclusive right to display the work in public and, in some instances, the exclusive right to perform the work in public.
While U.S. laws no longer require the use of a copyright notice such as "©Able, Baker, & Clark 1995" protect a copyright in works that are distributed to others, it is a good idea to use such a notice. It not only warns people that a copyright exists, but also makes it easier to prove that an infringer is a willful infringer.
Infringement of copyright in the United States can result in injunctions (court orders to terminate infringing activities) and, in some instances, the ordering of the destruction of the infringing copies. The infringer can also be obligated to pay damages and may be compelled to pay the copyright owner's attorney's fees. As one can infringe a copyright even though there is no intention to do so, it is important to have some general understanding of the nature of copyrights. In addition to civil actions, a copyright infringer may also be subject to criminal action that may result in imprisonment and fines. For criminal action, it is necessary to show that infringement was willful and for purposes of commercial advantage or private financial gain.
One way of minimizing the risk of infringement is for employers to provide guidelines regarding the various activities engaged in its business that may create a risk of copyright infringement. If your firm does not have such guidelines, it would be a good idea to check with a firm lawyer before initiating any large-volume copying from library books or information contained on CD-ROM or downloaded from computerized information services such as the Internet or on-line databases. One must be particularly careful where multiple copies of a work are being made or where copying an entire work will obviate the need to purchase a second copy.
One emerging area of concern in respect to copyright is the rapid expansion and use of the Internet. There are cases holding that the mere act of introducing a work into the memory of a computer or calling up an image on the screen results in the making of a copy that would result in copyright infringement. In many instances, the circumstances will provide an implied license, such as the dialogue on listservs and through Usenet groups (newsgroups) or chat rooms. Also, some people expressly provide a free license to use materials provided on the Internet. Another potential source of copyright-infringement risk involves accessing home pages on the World Wide Web and downloading information from them.
Some acts that would otherwise be a copyright infringement are excused through the concept of "fair use." The statute states that use for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is fair use. As to works not in these categories, the statute states that the factors to be considered include the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon a potential market for or value of the copyrighted work. This involves balancing the interests of the copyright owner and the one copying the material.
Arnold B. Silverman is chair of the Intellectual Property Department and a member of Eckert Seamans Cherin & Mellott, LLC, in Pittsburgh, Pennsylvania.