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Below are a number of copyright-related resources that many of our clients have found to be extremely helpful. This information is intended to be a starting point for educating yourself a little more about what a copyright is and what it protects. Once you are ready to move forward with obtaining your own copyright protection, please visit our Copyright Services page, or feel free to call 949-250-5800 or email us to schedule your FREE initial consultation.
Frequently Asked Questions
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How is a copyright different from a trademark? [back to top]
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A copyright protects creative works of authorship irrespective of their use in commerce, while a trademark protects only those words, phrases and symbols that are used in commerce in connection with the sale of specific goods or services, irrespective of the creativity of the trademark. Or, put another way, copyrights arise when an original work of authorship is tangibly fixed, while trademark rights arise only upon use. Copyrights are designed to protect the investment of time and effort in creating a unique and original work of authorship. Trademarks are designed to protect the investment of time and effort in creating a brand that uniquely identifies a source of goods or services to the consuming public. Both copyrights and trademarks do arise and are protectable without federal registration, though, for both, federal registration serves a notice function and is necessary under the respective statutes in order to receive some forms of damages from an infringer.
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Can my work be based on something I've seen or heard? [back to top]
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Most copyrightable works are not truly unique, in that they were perhaps inspired by or are at least similar in look, feel, or theme to previous works by others. What is protectable in any copyrightable work is the creative expression, or the content of the work of authorship that is unique to the author, not the underlying idea. This is known in the copyright laws as the "idea-expression dichotomy." Essentially, creative expression of ideas is protectable, while the ideas themselves are not. Similarly, in the context of literary works, facts are not protectable, but only the selection or arrangement of those facts in a new or unique way. Thus, a copyrightable work can be based on ideas or facts found in other works that the author has seen or heard. Where basing a new work on another, preexisting work becomes copyright infringement is when enough of the creative expression, or protectable aspects, of the preexisting work is used in the new work that the new work is considered a copy, or at least a derivative, of the preexisting work. As you might expect, these questions of copyright infringement are intensely factual and can only be addressed on a case-by-case basis, so if you have any concerns related to a work you have authored, you should seek the advice of an attorney.
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Is federal registration necessary to use the "©" symbol? [back to top]
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Registration of your work of authorship with the United States Copyright Office is not necessary to begin using the "©" symbol. In fact, for all copyrighted works created before January 1, 1978, publication with notice through use of the "©" symbol, or the word "copyright" or an abbreviation of it, was required before federal copyright protection would even be accorded and registration obtained. Use of the "©" symbol along with the year and your name as author of your work simply puts others on notice of your claim to copyright and can be done at any time after your work is created. Under current law, for works created after March 1, 1989, use of copyright notice (the "©" symbol) is not required for federal protection or registration, though it is still recommended because lack of notice can allow an infringer to use the "innocent infringer" defense. Furthermore, though you can begin using the "©" symbol without registering your copyright, registration is still recommended because it is a prerequisite to bringing a suit for copyright infringement and to taking advantage of the presumption of validity accorded registered copyrights. In the end, using the "©" symbol and registering your copyright is both your right and your responsibility.
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If anything found on the Internet does not have a copyright notice, is it free to copy? [back to top]
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No, just because you find something on the Internet or other place that does not have a copyright notice, that does not mean that you are free to copy it. Placement of the copyright notice ("©" with the year and author/owner, see above) does not create rights, but merely notifies others of existing rights. It used to be that the copyright laws required publication of a copyrighted work with notice else or the work would be dedicated to the public domain. The law has since changed, in large part to bring U.S. law into better conformity with international copyright law, so that notice now pertains essentially to the issue of infringement damages, not the preservation of rights. So, in short, if you copy anything from anyone without their permission, whether copyright notice is provided or not, chances are that you have committed copyright infringement. Whether notice is provided doesn’t affect your status as an infringer, only how much damages and other fees you may have to pay. You should never copy anything, particularly for commercial gain, without first consulting an attorney.
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What copyrights are involved in a musical work? [back to top]
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Music copyrights can be a confusing topic. First of all there are many people involved: the composer, the publisher, and the music licensing agency, each of whom has different rights which depend on how the business relationships are structured. There are also many types of rights, including the public performance right, the mechanical right, the reproduction right, the synchronization right, and others.
It is important to understand the difference between a song or musical work on one hand, and a sound recording on the other. A musical work is the composition of the song itself (such as the lyrics and sheet music). A sound recording is when someone performs the song and it is recorded onto a medium that allows the song to be played again. Many different types of rights can be granted for musical works, including the right to reproduce, the right to distribute (i.e., the mechanical right), the right to create derivative works, the right to perform publicly, and the right to display publicly.
Reproduction rights allow the copyright holder to make copies of a musical work or sound recording on a CD, record, computer files, in print, as part of a movie soundtrack, or other recording medium. This includes the right of duplication of such recordings in quantity.
Mechanical rights are needed if you intend to reproduce and distribute a musical work. This right is typically needed by a record company. The record company pays a fee per unit for this right. The fee is paid to the publisher or the publisher’s agent.
A synchronization right is the right to synchronize the performance of a sound recording in a specific way with visual images. Synchronization rights are important in the use of songs and sound recordings on TV shows, in the movies, or other types of motion picture and video media.
The derivative works right is the right to take an original song or sound recording and make alterations to it. For example, you can alter a song by writing new lyrics for it. Or you can alter a sound recording by mixing in additional instruments or incorporating it into a medley.
Display rights refer to the right to display a song publicly. This is a right encountered less frequently than the others, but would become an issue if someone wanted to display a song in some fashion (e.g. put the lyrics for a song in their store window).
This is just a short introduction into music copyrights. As such, we must stress that you should not attempt to copyright your music or move further on this subject without first consulting with an attorney.
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