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Intellectual property


What is Copyright?

Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship” that are fixed in a tangible form of expression—such as literary works, musical works, dramatic works, motion pictures, sound recordings, architectural works, paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, plays, and more.

An original work of authorship is a work that is independently created by a human author and possesses at least some minimal degree of creativity. A work is “fixed” when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.

Copyright protection in the United States exists automatically from the moment the original work of authorship is fixed.

Copyright has been a part of U.S. law since the nation’s founding, as the U.S. Constitution specifically gives Congress the power to make laws that protect the rights of authors in their writings. Article I, Section 8 of the Constitution states “Congress shall have 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.”

Congress relied on this Constitutional authority to pass the first federal copyright law in 1790 and has updated it throughout the years. See the Copyright Act of 1976, located in the United States Code beginning at 17 U.S.C. §101 (the Copyright Act).

Copyright is Originality and Fixation

Original Works

Works are original when they are independently created by a human author and have a minimal degree of creativity. Independent creation simply means that you create it yourself, without copying. The Supreme Court has said that, to be creative, a work must have a “spark” and “modicum” of creativity.

There are some things, however, that are not creative, like: titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; and mere listings of ingredients or contents. And always keep in mind that copyright protects expression, and never ideas, procedures, methods, systems, processes, concepts, principles, or discoveries.

Fixed Works

A work is fixed when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time. For example, a work is fixed when you write it down or record it.

Who is a copyright owner?

Everyone is a copyright owner. Once you create an original work and fix it—like taking a photograph, writing a poem or blog, or recording a new song—you are the author and the owner.

Companies, organizations, and other people besides the work’s creator can also be copyright owners. Copyright law allows ownership through “works made for hire,” which establishes that works created by an employee within the scope of employment are owned by the employer. The work made for hire doctrine also applies to certain independent contractor relationships, for certain types of commissioned works.

Copyright ownership can also come from contracts like assignments or from other types of transfers like wills and bequests.

What rights does copyright provide?

U.S. copyright law provides copyright owners with the following exclusive rights:

• Reproduce the work in copies or phonorecords.

• Prepare derivative works based upon the work.

• Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.

• Perform the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a motion picture or other audiovisual work.

• Display the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or other audiovisual work.

• Perform the work publicly by means of a digital audio transmission if the work is a sound recording.
Copyright also provides the owner of copyright the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations.

How long does copyright protection last?

The length of copyright protection depends on when a work was created. Under the current law, works created on or after January 1, 1978, have a copyright term of life of the author plus seventy years after the author’s death.

If the work is a joint work, the term lasts for seventy years after the last surviving author’s death. For works made for hire and anonymous or pseudonymous works, copyright protection is 95 years from publication or 120 years from creation, whichever is shorter.

Works created before 1978 have a different timeframe.

When can I use works that are not mine?

Agreements, Exceptions, and Limitations

It is important to know that we are all also copyright users. When we read books, watch movies, listen to music, or use video games or software, we are using copyright-protected works.

So even if you are not the owner of a work, you still may be able to use it. In addition to buying or licensing works (or some other way of seeking permission to use the work), you can also use one of the Copyright Act’s exceptions and limitations or rely on works in the public domain.

The Copyright Act’s exceptions and limitations found in sections 107-122 include fair use, the “first sale doctrine,” some reproductions by libraries and archives, certain performances and displays, and broadcast programming transmissions by cable and satellite, to name a few. The complete list of exemptions to copyright protection can be found in chapter 1 of Title 17 of the United States Code. See 17 U.S.C. §107 to 17 U.S.C. 122.

You can also use works that are in the public domain. Works in the public domain are those that are never protected by copyright (like facts or discoveries) or works whose term of protection has ended either because it expired or the owner did not satisfy a previously required formality. Currently, all pre-1926 U.S. works are in the public domain because copyright protection has expired for those works.

What is copyright registration?

Copyright exists automatically in an original work of authorship once it is fixed, but a copyright owner can take steps to enhance the protections. The most important step is registering the work. Registering a work is not mandatory, but for U.S. works, registration (or refusal) is necessary to enforce the exclusive rights of copyright through litigation.

Timely registration also allows copyright owners to seek certain types of monetary damages and attorney fees if there is a lawsuit, and provides a presumption that information on the registration certificate is correct.

Copyright registration also provides value to the public overall. It facilitates the licensing marketplace by allowing people to find copyright ownership information, and it provides the public with notice that someone is claiming copyright protection. It also provides a record of this nation’s creativity.

There is only one place to register claims to copyright in the United States—the Copyright Office.

What if there is change in ownership?

Document Recordation

The Copyright Office also records documents related to Copyright. This is known as Recordation, and means that the Office reviews and accepts documents and keeps a record of the documents people provide. Recordation relates to three different kinds of documents: transfers of copyright ownership; other documents relating to a copyright; and notices of termination—which authors or their heirs use when terminating certain transfers or licenses.

What is statutory licensing?

Statutory licenses are some of the limitations in the Copyright Act. They relate to certain uses of musical compositions, sound recordings, and cable and satellite programming.

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. Procedures for registering the contents of a website may be found in the U.S. Copyright Office’s Circular 66, Copyright Registration of Websites and Website Content.

Can I copyright my domain name?

Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assigning of domain names through accredited registers.

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. See the U.S. Copyright Office’s Circular 33, Works Not Protected by Copyright.

Can I copyright the name of my band?

No. Names are not protected by copyright law. Some names may be protected under trademark law. Contact the U.S. Patent & Trademark Office by e-mail at or see the U.S. Copyright Office’s Circular 33, "Copyright Protection Not Available for Names, Titles, or Short Phrases".

How do I copyright a name, title, slogan, or logo?

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office by e-mail at

or see the U.S. Copyright Office’s Circular 33, "Copyright Protection Not Available for Names, Titles, or Short Phrases" for further information.

However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

How do I protect my idea?

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

Does my work have to be published to be protected?

Publication is not necessary for copyright protection.

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

Can I register a diary I found in my grandmother’s attic?

You can register copyright in the diary within a certain duration 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. See the U.S. Copyright Office’s Circular 1, Copyright Basics, in the section “Who Can Claim Copyright.”

How do I copyright my sighting of Elvis?

Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. File your claim to copyright online by means of the electronic Copyright Office (eCO).

Pay the fee online and attach a copy of your photo. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.

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 the U.S. Copyright Office’s Circular 41, Copyright Claims in Architectural Works.

Can I get a star named after me and claim copyright to it?

No. There is a lot of misunderstanding about this. Names are not protected by copyright. Publishers of works such as a star registry may register a claim to copyright in the text of the volume (or book) containing the names the registry has assigned to stars, and perhaps the compilation of data; but such a registration would not extend protection to any of the individual star names appearing in the book. Copyright registration of such a volume of star names does not confer any official or governmental status on any of the star names included in the volume.

Copyright is a legal concept that grants creators of original works exclusive rights to their intellectual property for a specific period. In Texas, as in all U.S. states, copyright is governed by federal law, specifically the Copyright Act of 1976, codified in Title 17 of the United States Code. Copyright protection arises automatically when a work is created and fixed in a tangible medium of expression, such as writing it down or recording it. The creator of the work is the copyright owner, although ownership can also be established through 'works made for hire,' contracts, or transfers. Copyright owners have exclusive rights to reproduce, distribute, prepare derivative works, and publicly perform or display their works. The duration of copyright protection varies: for works created after January 1, 1978, it lasts for the life of the author plus 70 years; for works made for hire, anonymous, or pseudonymous works, it is 95 years from publication or 120 years from creation, whichever is shorter. Copyright registration, while not mandatory, is beneficial for enforcement and may allow for statutory damages and attorney fees in litigation. Copyright does not protect ideas, procedures, methods, systems, concepts, principles, discoveries, names, titles, slogans, or short phrases. These may be protected under trademark law instead. Works in the public domain, or those with expired copyright, can be used freely. The Copyright Act includes exceptions and limitations, such as fair use and statutory licensing, which allow for certain uses of copyrighted material without infringement.

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