FAQ: Questions and Answers

[back to notice text] Question: Who may hold a copyright? Answer: A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner. 17 U.S.C. ?201(a), (d). In some cases, however, the actual creator is not considered the author of the work for copyright purposes: if a work is created by an employee in the regular course of her employment, it is considered a "work for hire" and the employer, not the employee, is considered the "author" of the work for copyright purposes. For example, in the absence of an agreement to the contrary, a staff writer for a newspaper does not hold the copyrights in her product, the newspaper does. This only applies to works created in the ordinary course of employment: if the same reporter writes a novel in her spare time, she herself owns that copyright. Certain commissioned works may also be considered works for hire. 17 U.S.C. ?201(b); Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work for hire" is defined in 17 U.S.C. ?101. [back to notice text] Question: What is a civil lawsuit? Answer: In a civil lawsuit, the victim brings a case for money damages against the offender or a third party for causing physical or emotional injuries. Regardless of the outcome of any criminal prosecution, or even if there was no prosecution, crime victims can file civil lawsuits against offenders and other responsible parties. The person who starts the lawsuit is called the plaintiff,and the person or entity against whom the case is brought is called the defendant. Unlike a criminal case, in which the central question is whether the offender is guilty of the crime, in a civil lawsuit, the question is whether an offender or a third party is responsible for the injuries suffered In a civil suit, unlike a criminal prosecution, the plaintiff is responsible for the cost of litigation. Most attorneys handle victim cases on a contingency basis, which means that the attorney fee is deducted from the final award. This allows individuals to have access to the civil justice system without the need to finance the case themselves. If the case is not successful, the victim usually pays nothing. In a civil suit, the attorney directly represents the victim?s interests and the victim has greater control in case decision-making than in a criminal prosecution. A civil lawsuit is different from the compensation available from the Attorney General's Victim Compensation Division. [back to notice text] Question: What constitutes copyright infringement? Answer: Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission: 1. reproduce (copy) the work; 2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression); 3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she posesses.) 17 U.S.C. ?109(a); 4. perform or display the work in public without permission from the copyright owner. 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here. [back to notice text] Question: What may be copyrighted? Answer: In order to be copyrightable, a work must be 1. fixed in a tangible medium of expression ; and 2. original. Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations. 17 U.S.C. ? 102(b). Anything unrecorded is not copyrightable, in as much as it is not "fixed;" for example, dances and improvisations themselves are not copyrightable: only visual recordings or written descriptions of them are. Say I go to a jazz concert and listen to a soloist's improvisation. If I have the musical equivalent of a photgraphic memory, I may be able to reproduce that improvised solo in my own concert on the following night. If that solo exists nowhere but my memory (i.e. the original concert was not recorded) I may play it with impunity, because it is not "fixed" and therefore not copyrightable. But, if the original concert was recorded (e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred from playing my version of the solo. Even a bootleg recording (for which the recorder can be punished under section 1101 of the copyright act) qualifies for copyright protection: a work need not be formally published in order to be "fixed;" it need only be saved in a tangible form. 17 U.S.C. ? 104. The originality requirement of 17 U.S.C. ?102 demands that a work, in order to be copyrigted, be independently created by the author. In order to be original, a work need not necessarily have novelty, artistic merit, truth, or lawful content. For example, a replica of a painting in the public domain may not be novel, but it is copyrightable. An item of sculpture designed to be used as a pipe for smoking marijuana may not be designed for legal ends, but it is copyrightable. A false biography is copyrightable, although it may well also be cause for defamation litigation. [back to notice text] Question: What constitutes unlicensed copy and display of copyrighted material? Answer: Unlicensed use or distribution of copyrighted works is illegal and may be considered a criminal act. Copyright law grants the exclusive right to use, copy, distribute, display and perform a copyrighted work to the owner of the copyright. The owner of the copyright is the only entity that may grant permission for anyone to use, copy, distribute, display and perform the work. [back to notice text] Question: What are the possible penalties for copyright infringement? Answer: Under the Copyright Act, penalties for copyright infringement can include: an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works impounding or destruction of infringing copies damages -- either actual damages and the infringer's profits, or statutory damages costs and attorney's fees A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412)

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