There are three types of intellectual property. They include: (1) trademark; (2) patent; and (3) copyright law. As discussed in Trade Dress Protection, “[a] trademark is a mechanism for identifying the source of a good or service and a technique for providing marketing advantages for the owner of the trademark.” Moreover, while a patent protects an inventor’s inventions, a copyright protects an author’s original work.

The federal Copyright Act of 1976 governs the United States Copyright law. According to the law, Congress shall have the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Art. 1, Sec. 8, Cl. 8. The purpose of copyright is:

(1) To foster the creation and dissemination of intellectual works for the public welfare; and

(2) To give authors a reward due to them for their contribution to society.

How to Obtain a Copyright

A copyright exists for works that are “original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. §102 (a). Works of authorship include the following eight categories:

1. Literary works;
2. Musical works, including any accompanying words;
3. Dramatic works, including any accompanying music;
4. Pantomimes and choreographic works;
5. Pictorial, graphic, and sculptural works;
6. Motion pictures and other audiovisual works;
7. Sound recordings; and
8. Architectural works. Id.

However, “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. §102 (b).

Rights Under a Copyright

The copyright owner has the exclusive rights to do or to authorize any of the following:

1. Reproduce the copyrighted work in copies or phono-records;
2. Prepare derivative works based upon the copyrighted work;
3. Distribute copies or phono-records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. §106.

Copyright Duration, Registration, and Enforcement

Understanding the basic structure of copyright law—what it protects, how long it lasts, and how it is enforced—is essential for anyone who creates, publishes, distributes, or uses creative works. The following sections address the most practically significant aspects of copyright law for content creators and businesses.

Copyright Duration Under the Copyright Act of 1976

The duration of copyright protection depends on when the work was created and, for older works, whether certain formalities were observed. For works created on or after January 1, 1978, the general rule is straightforward: copyright lasts for the life of the author plus 70 years. 17 U.S.C. §302(a). For works made for hire, anonymous works, and pseudonymous works, the term is 95 years from the year of first publication or 120 years from the year of creation, whichever expires first. 17 U.S.C. §302(c).

Works published before 1978 are governed by more complex rules, but the Copyright Term Extension Act of 1998 (the “Sonny Bono Act”) extended the copyright term for pre-existing works, such that most works published after 1927 remain under copyright today. The practical implication for anyone seeking to use older material is that the copyright status of pre-1978 works requires careful case-by-case analysis.

Copyright Registration: Why It Matters

Copyright protection arises automatically upon creation and fixation—no registration is required. However, federal registration with the U.S. Copyright Office, 17 U.S.C. §408, provides several critical advantages that make it strongly advisable for any commercially significant work:

• Prerequisite to federal litigation: A copyright owner cannot file suit for infringement of a U.S. work in federal court until the work has been registered. 17 U.S.C. §411. While the Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___ (2019), clarified that registration occurs upon the Copyright Office’s action—not upon filing—timely registration is still essential for enforcement.
• Statutory damages and attorney’s fees: If a work is registered before infringement begins (or within three months of first publication), the copyright owner can elect to receive statutory damages instead of actual damages. 17 U.S.C. §412. Statutory damages range from $750 to $30,000 per infringed work, and up to $150,000 for willful infringement. Without timely registration, the copyright owner is limited to actual damages and the infringer’s profits, which may be difficult and expensive to prove.
• Public record of ownership: Registration creates a public record that establishes the date and ownership of the work, which can be crucial in disputes about who owns a copyright or when rights were acquired.
• Presumption of validity: For works registered within five years of publication, the registration certificate constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate. 17 U.S.C. §410(c). This shifts the burden of proof in infringement litigation to the defendant.

Fair Use: The Most Important Copyright Limitation

The fair use doctrine, codified at 17 U.S.C. §107, allows the use of copyrighted material without permission in certain circumstances. Courts evaluate fair use by weighing four non-exclusive factors:

• Purpose and character of the use: Commercial uses generally weigh against fair use; transformative uses weigh in favor. A use is transformative when it adds new expression, meaning, or message to the original.
• Nature of the copyrighted work: Highly creative works receive stronger protection; factual and functional works receive less.
• Amount and substantiality of the portion used: Both the quantity and the qualitative significance of the portion used are relevant.
• Effect on the market: Whether the use displaces sales of the original or its licensed derivatives is typically the most significant factor.

Fair use is an affirmative defense, not a blanket permission. It must be raised and proven by the defendant in an infringement action, and its application is notoriously unpredictable. No formula guarantees a fair use finding, and relying on the doctrine without legal analysis is risky.

Copyright Infringement and Remedies

Copyright infringement occurs when any of the exclusive rights under 17 U.S.C. §106 are violated without authorization and without a valid defense such as fair use. Direct infringement requires no showing of intent—it is a strict liability offense. Indirect liability, including contributory infringement and vicarious liability, requires additional elements.

Remedies available to prevailing copyright plaintiffs include:

• Injunctive relief prohibiting further infringement;
• Impoundment and destruction of infringing copies;
• Actual damages and the infringer’s profits;
• Statutory damages (for timely registered works);
• Attorney’s fees and costs (for timely registered works); and
• Criminal penalties for willful infringement, including fines and imprisonment under 17 U.S.C. §506.

Copyright in the Digital Age

The digital environment has dramatically increased both the prevalence and ease of copyright infringement. The Digital Millennium Copyright Act of 1998 (DMCA) added a comprehensive framework for addressing online infringement, including safe harbors for internet service providers, anti-circumvention rules, and the notice-and-takedown procedure. For content creators who publish online, understanding the DMCA’s takedown procedures—both for sending notices and responding to them—is now a basic requirement of operating in the digital marketplace.

If you have questions about copyright law, protecting your creative works, or responding to a copyright claim, contact Revision Legal’s copyright attorneys at 855-473-8474.