textfiles/bbs/KEELYNET/UNCLASS/copyrigh.asc

 

                     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]


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