Comments are generalizations and may not apply to every
situation. It is advisable to consult with a competent professional before
relying on any written commentary. Paul D. Supnik is a member of the State
Bar of California and not of any other state or country. The material set
forth herein is not for the purpose of soliciting any engagements where
to do so would be to offend or violate the professional standards of any
other state, country or bar. This web site Copyright 1996 by Paul
Links to other web sites provided as a convenience. No responsibility
is assumed for the content of web sites referenced. Their inclusion does
not necessarily constitute an endorsement of the linked cite, nor does
the inclusion here of a reference to a web cite or a link to a webcite
represent an endorsement by web cite referenced or its sponsors. Comments
are generalizations and may not apply to every situation. It is advisable
to consult with a competent professional before relying on any written
commentary. Paul D. Supnik is a member of the State Bar of California and
not of any other state or country. The material set forth herein is not
for the purpose of soliciting any engagements where to do so would be to
offend or violate the professional standards of any other state, country
or bar. This web site Copyright 1996 by Paul D. Supnik
Currently, a copyright comes into existence upon its fixation in a tangible
medium of expression, whether or not the work is registered and whether
or not the work bears a copyright notice. However registration and copyright
notices are generally recommended.
Registration of a copyright within 5 years of first publication established
a prima facie presumption of the facts in the registration certificate.
Registration prior to infringement preserves the right to attorneys fees
and statutory damages, giving the copyright proprietor bargaining leverage
in settling infringement disputes.
Copyright notices in the United States are no longer required as a condition
of maintaining or acquiring copyright protection, however it helps avoid
contentions by infringers that they were not aware that the work was subject
to copyright protection.
The Internet does not remove copyright protection. It still exists and
lawsuits for infringing on the Internet are likely to become more frequent.
Works of foreign origin which have been in the public domain in the United
States in the past may have been restored as a result of new legislation.
Additional benefits to rights holders may be obtained, for a limited time,
by recording a Notice of Intention to Enforce a Copyright with the Copyright
The failure to renew copyright in works used to cause works to fall in
the public domain. Now, if a work is not renewed, it does not fall into
the public domain. However, there are still probably certain advantages
to filing the copyright renewal with the Copyright Office. Works which
previously fell into the public domain as a result of failure to renew
are likely to still be in the public domain.
Copyright registration forms may be obtained from the U.S. Copyright Office.
Request form TX for texts, PA, for works of performing arts, including
scripts, plays and musical compositions, SR for sound recordings, VA for
works of visual arts. Call the copyright forms hotline, 202-707-9100 for
copyright registration forms.
Copyright registration is usually made by completing the copyright form,
sending the completed form with a check for $20, and including either a
deposit copy, often two copies if the work has been published, and sometimes
"identifying material". The specific requirements can be complex, but the
Copyright Office can be helpful in providing requirement information.
For published works, there is a requirement that the deposit copies include
copies of the best edition of the work. There is a well defined hierarchy
of what constitutes the "best edition" of a work. There are also specific
requirements for the deposit of motion pictures, and there is always the
possibility that the copyright office, through the Library of Congress
will require the submission at some point in time of best edition of a
motion picture, which generally means a 35mm print. However, for the purpose
of registration, it is now generally possible at least initially to file
the registration application with a VHS tape.
Works made for hire arise either out of an employment relationship or as
a result of a contract in accordance with the copyright act setting for
the limited situations in which a work is a work made for hire. Determining
whether an employment relationship exists is not simple. The U.S. Supreme
court listed about a dozen factors which must be considered in making that
determination, none of which are necessarily determinative. Absent an employment
relationship, a work may be a work made for hire only if it is one of a
select type of works specially defined in the statute, e.g., an audiovisual
work such as a motion picture. Even there, the statute probably requires
that the contract making the work be a work made for hire, be signed by
both the commissioning party and the commissioned party. Some recent cases
have suggested that this agreement cannot be signed after the fact, and
at least one case has hinted that the agreement must be signed before even
any conceptualization has commenced on a project.
Assignments of copyright must be signed by the party assigning the copyright.
However, licenses of rights in copyright need not be signed to be enforced.
Nevertheless, oral agreements are difficult to enforce.
Assignment of copyright should be registered in the Copyright Office. The
effect of recordation of a copyright assignment is to provide constructive
notice of the assignment, if recorded within one month of execution, if
executed in the United States, and within 2 months of execution if executed
outside of the United States.
Assignments of copyright can be terminated by the assignor under certain
circumstances. Generally, there is a five year window of time to accomplish
the termination beginning after the end of fifty-six years from the date
copyright was originally secured, or beginning 35 years from the assignment
for transfers after January 1, 1978. The purpose is to give the creator
of the work or the statutory successors a second chance to exploit the
work when the value of the work may have been significantly enhanced since
the original transfer. However, the termination of transfer provisions
of the Copyright Law are not available for works made for hire.
There is no magic percentage formula that will shield one from a lawsuit
for copyright infringement. If there is substantial similarity of protectable
material in the would be infringing work, there is the basis for a valid
claim of infringement.
It is possible to obtain an injunction to prevent infringement. Seeking
preliminary injunctive relief at the outset of a lawsuit tends to be costly,
but can be effective and has a tendency to result in the lawsuit coming
to a conclusion promptly. Under certain circumstances it is also possible
to obtain seizure orders to have infringing goods seized. Both for preliminary
injunctions and for writs of seizure, bonds are required to protect the
party against whom the injunction is granted or against whom the writ of
seizure is granted, in the event it is later determined that the goods
were not infringing.
Disclaimer--please read first | ©1996
Paul D. Supnik
Attorney at Law