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