Languages:
English flagItalian flagChinese (Simplified) flagPortuguese flagGerman flagFrench flagSpanish flagJapanese flag

Copyright FAQ

  1. What is copyright protection?
  2. What may be copyrighted?
  3. Who may hold a copyright?
  4. What rights are protected by copyright law?
  5. How is a copyright different from a patent or a trademark?
  6. When is my work protected?
  7. Why should I register my work if copyright protection is automatic?
  8. I’ve heard about a “poor man’s copyright.” What is it?
  9. Is my copyright good in other countries?
  10. What does copyright protect?
  11. Can I copyright my website?
  12. Can I copyright my domain name?
  13. Can I submit an extremely large website?
  14. What if I update or change my website?
  15. Am I free to copy elements of someone else’s website verbatim?
  16. What are screenshots, and is using them copyright infringment?
  17. How do I protect my recipe?
  18. Can I copyright the name of my band?
  19. How do I protect my idea?
  20. Does my work have to be published to be protected?
  21. Can I register a diary I found in my grandmother’s attic?
  22. Does copyright protect architecture?
  23. Can foreigners register their works in the United States?
  24. Can a minor claim copyright?
  25. What is the Digital Millennium Copyright Act?
  26. Where can I find the text of the U.S. Copyright Act?
  27. What is copyright infringement? Are there any defenses?
  28. What constitutes copyright infringement?
  29. What are the possible penalties for copyright infringement?
  30. How can I find out whether a work has a registered copyright?
  31. Does copyright protect words or short phrases?
  32. Is my registered Copyright valid in other countries?
  33. What is the difference between plagiarism and copyright infrigement?
  34. May I freely copy from federal government documents?
  35. What is a valid copyright license?
  36. Does copyright protect techniques or methods?
  37. What is the Universal Copyright Convention (UCC)?
  38. What is the Berne Convention for the Protection of Literary and Artistic Works?
  39. What is the World Intellectual Property Organization (WIPO)?
  40. What is “proprietary” material?
  41. What constitutes unlicensed copy and display of copyrighted material?
  42. Do I need to register my copyright?
  43. How do I get permission to use somebody else’s work?
  44. My local copying store will not make reproductions of old family photographs. What can I do?
  45. Several years ago, I volunteered to write articles for a web site. I did not sign any contracts. I now want to use those articles on my own web site, but the owner of the web site claims that he owns the rights? Does it matter that he was the first to publish?

What is copyright protection?
A copyright protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permission of the copyright owner. 17 U.S.C. 102. The copyright in a work vests originally in the author(s) of the work. The author(s) may transfer the copyright to any other party if she(they) choose(s) to do so. 17 U.S.C. 201. Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, creation of a work derived from the work, distribution of copies of the work, or public performance or display of the work. 17 U.S.C. 106. This right lasts for the life of the author plus seventy years; or in the case of a copyright authored by an entity (a work-for-hire), for ninety-five years. 17 U.S.C. 302.

17 U.S.C. 102. The copyright in a work vests originally in the author(s) of the work. The author(s) may transfer the copyright to any other party if she(they) choose(s) to do so. 17 U.S.C. 201. Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, creation of a work derived from the work, distribution of copies of the work, or public performance or display of the work. 17 U.S.C. 106. This right lasts for the life of the author plus seventy years; or in the case of a copyright authored by an entity (a work-for-hire), for ninety-five years. 17 U.S.C. 302.

What may be copyrighted?
In order to be copyrightable, a work must be

1. fixed in a tangible medium of expression ; and
2. original.

Copyrightable works include intellectual property such as web sites, computer code, software, databases, literary works, music, lyrics, dramatic works, writings, poetry, graphic and sculptural works, motion pictures, audiovisual works, sound recordings, and architecture.

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.

Names, titles, and short phrases or expressions are not subject to copyright protection. Even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright.  See Circular 34.

The originality requirement of 17 U.S.C. 102 demands that a work, in order to be copyrighted, be independently created by the author. In order to be original, a work need not necessarily have novelty, artistic merit, truth, or lawful content.

Who may hold a copyright?
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. For example, 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.

What rights are protected by copyright law?
The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author’s original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder’s rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

How is a copyright different from a patent or a trademark?
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

For example, trademark law designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner’s market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant’s use of the mark is likely to cause such confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of “Klingon” lingerie. If consumers could reasonably believe that my clothing line was produced or endorsed by the owners of any Star Trek trademark holders, then I might be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as “The Worf Assault.” Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark, and then I might be liable for dilution.

And for those who appreciate the discussion above, then you likely understand that the Star Trek trademark holders could claim that use of “live long and prosper” might subject me to trademark infringement.

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law.

I’ve heard about a “poor man’s copyright.” What is it?
The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration. At best it may be considered extrinsic evidence of creation on the date of the mailing.

Is my copyright good in other countries?
The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country.

What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

Can I copyright my website?
The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright. See Circular 66.

Can I copyright my domain name?
Copyright law does not protect domain names. You may be able to trademark your domain name if you use that name (without the tld (.com, .net, .biz, .pro, etc.) to represent your company in association with particular goods or services. Please see Trademark FAQ for more information.

Can I submit an extremely large website?
Yes. There is no limit, however, websites over one gigabyte of data may require special arrangements and additional fees.

What if I update or change my website?
Your Copyright Registration covers only the material submitted at the time of registration. If you update or change your site you would need to register the new material in order to protect the new content.

Am I free to copy elements of someone else’s website verbatim?
No. While you are free to report the facts and ideas embodied in another person’s article or web page, copyright protects the expression — the combination of words and structure that expresses the factual information — but not the facts and ideas themselves.

What are screenshots, and is using them copyright infringement?
Screen shots or screen dumps are still images taken from computer programs. Screen shots are often used in training materials to explain how to use a computer program. Yes, screen shots are protected by copyright law if the original work is protected and using them likely constitutes copyright infringement. This is due to the fact that screenshots are viewed as derivative works.

Therefore, if one uses a screenshot of a copyrighted work without the proper license from the copyright holder, it is copyright infringement. One defense may be fair use, however, depending on the use of the screenshot and the extent to which the copyrighted work is the sole subject of the screenshot. Another possible defense may be that substantial changes were made to the original work so that the screenshot is a “new” piece of work.

How do I protect my recipe?
A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records.

Can I copyright the name of my band?
No. Names are not protected by copyright law. You may however trademark your band name. Please see Trademark FAQ [Matt - insert hyperlink to Trademarks]

How do I protect my idea?
File a patent. Filing a copyright of the words explaining your idea will only protect the writing and not the idea itself.

Does my work have to be published to be protected?
Publication is not necessary for copyright protection.

Can I register a diary I found in my grandmother’s attic?
You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself.

Does copyright protect architecture?
Yes. Architectural works became subject to copyright protection on December 1, 1990. The copyright law defines “architectural work” as “the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Copyright protection extends to any architectural work created on or after December 1, 1990. Also, any architectural works that were unconstructed and embodied in unpublished plans or drawings on that date and were constructed by December 31, 2002, are eligible for protection. Architectural designs embodied in buildings constructed prior to December 1, 1990, are not eligible for copyright protection.  See Circular 41.

Can foreigners register their works in the United States?
Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which we have a copyright treaty or that are created by a citizen or domiciliary of a country with which we have a copyright treaty are also protected and may therefore be registered with the U.S. Copyright Office.

Can a minor claim copyright?
Minors may claim copyright, and the U.S. Copyright Office issues registrations to minors, but state laws may regulate the business dealings involving copyrights owned by minors. For information on relevant state laws, consult an attorney.
What is the Digital Millennium Copyright Act?
The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to “circumvent” a technological measure protecting access to or copying of a copyrighted work (see Anticircumvention (DMCA)). Another part gives web hosts and Internet service providers a “safe harbor” from copyright infringement claims if they implement certain notice and takedown procedures (see DMCA Safe Harbor Provisions).

Where can I find the text of the U.S. Copyright Act?
The U.S. Copyright Act may be found at http://www.loc.gov/copyright/title17/

What is copyright infringement? Are there any defenses?
Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is “fair use,” a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. See, 17 U.S.C. 107. The fair use doctrine allows the reproduction and use of work, notwithstanding the rights of the author (17 U.S.C. 106 and 106A), for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use may be described as the privilege to use the copyrighted material in a reasonable manner without the owner’s consent. To evaluate fair use of copyrighted material, the courts consider four factors:

  1. The purpose and character of the use. Transformative uses are favored over mere copying. Non-commercial uses are also more likely fair.
  2. The nature of the copyrighted work. Is the original factual in nature or fiction? Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.
  3. The amount and substantiality of the portion used. Copying nearly all of a work, or copying its “heart” is less likely to be fair.
  4. The effect on the market or potential market. This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it’s unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair. Linking to the original may also help to diminish the substitution effect. Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character. In other words, if your criticism of a product is so powerful that people stop buying the product, that doesn’t count as having an “effect on the market for the work” under copyright law.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier’s use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as “fair use.”

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor’s trademark when referring to that competitor’s product (“nominative use”). Second, the law protects “fair comment,” for instance, in parody.

What constitutes copyright infringement?
Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author’s permission.

  1. oreproduce (copy) the work;
  2. ocreate 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. osell 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. operform 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.

What are the possible penalties for copyright infringement?
Under the U.S. Copyright Act, penalties for copyright infringement can include:

  1. an injunction against further infringement — such as an order preventing the infringer from future copying or distribution of the copyrighted works
  2. impounding or destruction of infringing copies
  3. damages — either actual damages and the infringer’s profits, or statutory damages
  4. 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)

How can I find out whether a work has a registered copyright?
Works are copyrighted as soon as they are “fixed in a tangible medium of expression,” but some legal rights and remedies are available only if the work’s copyright is registered. To find a copyright registration, you may search copyright records at the U.S. Copyright Office website, but be aware that not finding a match does not mean the work is uncopyrighted.

Does copyright protect words or short phrases?
No. Names, titles, and short phrases are not subject to copyright protection. These are not deemed to be “original works of authorship” under the Copyright Act. Names may be protected by trademark, in some instances. See the Trademark FAQ for more information.

Is my registered Copyright valid in other countries?
Yes
. The United States has copyright treaties with most countries throughout the world, and as a result of these agreements, each country respects the copyrights of the others. Currently, a U.S. copyright is honoured in 190 countries around the world.

What is the difference between plagiarism and copyright infrigement?Many people confuse the two, but copyright infringement and plagiarism are different concepts. Plagiarism occurs when a dishonest writer, or some other person, copies another’s words or ideas without attributing them to the true author.

Copyright infringement is a legal offense, subject to monetary damages and injunctions imposed by a court of law. It occurs when a person, knowingly or unknowingly, violates the exclusive right of the copyright holder to reproduce, display, perform, distribute, or make a derivative version of a certain work.

Finally, the U.S. Copyright Act applies only to expression, and not ideas. Consequently, one cannot commit copyright infringement by copying a plot twist or abstract theory, whereas one can plagiarize any of the above.

May I freely copy from federal government documents?
Yes. Works produced by the U.S. government, or any government agency or person acting in a government capacity, are in the public domain. So are the texts of legal cases and statutes from state or federal government. Private contractors working for the government, however, can transfer copyrights to the U.S. government.

What is a valid copyright license?
A valid license is an agreement where the copyright owner retains his or her ownership of the rights involved, but allows a third party to exercise some or all of those rights without fear of a copyright infringement suit. A license is preferred over an assignment of rights where the copyright holder wishes to maintain some ownership over the rights, or wishes to exercise continuing control over how the third party uses the copyright holder’s rights.

Does copyright protect techniques or methods?
No. Copyright protects only expression, not ideas. So while copyright might protect one author’s description of a bookkeeping method, it does not prevent others from using the method or copying the forms needed to use it.

This “idea/expression dichotomy” is spelled out in part in the U.S. Copyright Act’s Section 102(b):

“In 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.”

What is the Universal Copyright Convention (UCC)?
The Universal Copyright Convention (UCC), adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention.

The UCC was developed by United Nations Educational, Scientific and Cultural Organization as an alternative to the Berne Convention for those states which disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection.

What is the Berne Convention for the Protection of Literary and Artistic Works?
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright, which was first adopted in Berne, Switzerland in 1886. It was developed at the instigation of Victor Hugo, and was thus influenced by the French “right of the author” (droit d’auteur), which contrasts with the Anglo-Saxon concept of “copyright”, which has only been concerned with economic protection.

What is the World Intellectual Property Organization (WIPO)?
The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations. WIPO was created in 1967 with the stated purpose of encouraging creative activity and promoting the protection of intellectual property throughout the world.

What is “proprietary” material?
“Proprietary” indicates that a party, or proprietor, exercises private ownership, control or use over an item of property, usually to the exclusion of other parties.

Where a party, holds or claims proprietary interests in relation to certain types of property (e.g., a creative literary work, or software), that property may also be the subject of intellectual property law (e.g., copyright or patents).

What are statutory damages?
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)

A copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the tribunal determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504). Innocent infringement may lower the damages amount. Typically, a copyright notice on a work, precludes an infringer from claiming innocent infringement.

What constitutes unlicensed copy and display of copyrighted material?
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.

Do I need to register my copyright?
You get copyright automatically when you create a work and “fix” or record it. Registration with the U.S. Copyright Office is not a prerequisite, but it can give you additional protection: you can only get statutory damages for infringement of a registered copyright. A U.S. author must also register before filing a copyright lawsuit in federal court.

How do I get permission to use somebody else’s work?
You can ask for it. If you know who the copyright owner is, you may contact the owner directly. If you are not certain about the ownership or have other related questions, you may wish to request that the Copyright Office conduct a search of its records or you may search yourself.

Note: Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner’s exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney’s fees incurred by the copyright owner to enforce his or her rights.

Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law.

Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks. To avoid these risks, there are currently many “authorized” services on the Internet that allow consumers to purchase copyrighted works online, whether music, ebooks, or motion pictures. By purchasing works through authorized services, consumers can avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware.

For more information on this issue, see the Register of Copyrights’ testimony before the Senate Judiciary Committee.

My local copying store will not make reproductions of old family photographs. What can I do?
Photocopying shops, photography stores and other photo developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued. These fears are not unreasonable, because copy shops have been sued for reproducing copyrighted works and have been required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if they reproduce a work even if they did not know the work was copyrighted.

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.

There may be situations in which the reproduction of a photograph may be a “fair use” under the copyright law. Information about fair use may be found at: www.copyright.gov/fls/fl102.html. However, even if a person determines a use to be a “fair use” under the factors of section 107 of the Copyright Act, a copy shop or other third party need not accept the person’s assertion that the use is noninfringing. Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law.

Several years ago, I volunteered to write articles for a web site. I did not sign any contracts. I now want to use those articles on my own web site, but the owner of the web site claims that he owns the rights? Does it matter that he was the first to publish?

a) Initial Ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.

b) Works Made for Hire. In the case of a work made by hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

Comment: Section 201(a) makes clear that ownership of a copyright vests initially in the author. Thus publishers hold copyrights as assignees of authors. Section 201(b) is what is called a legal fiction, that is a proposition that has legal effect but is not true as a matter of fact. The fiction in this case is that the employer of an author for whom the work is prepared is the author of the work. It is necessary to use a fiction to place the copyright in the employer because the copyright clause enables Congress to grant copyright only to authors.

An important point about section 201(a) is that it deals only with ownership of the copyright, not the work. From this, it follows that the copyright statute itself deals only with the ownership of the right, not of the work. Indeed, the copyright clause does not enable Congress to grant ownership of writings, only an “exclusive Right” to which writings are subject.

Last Modified: December 5th, 2009