Monday Mornings with Madison

Intellectual Property: Are Your Brands, Products and Services Protected? – Part 2

Part 2:  Copyright Protection

Anyone with a new invention or process must file for a patent in order to protect his or her ownership and use rights.  However, that is not so for new works of art, photos, pictures, songs, books, manuscripts, publications, plays, movies, and shows, among other things. For items of creative expression, copyright is automatic, meaning that nothing needs to be done to claim copyright protection. Although additional rights are provided if the work is registered with the U.S. Copyright Office, legal protection is guaranteed once a work is created – which is the day it is “fixed in a tangible medium of expression.”

That’s not all that is different between copyrights and other intellectual property protections such as patents and trademarks.  That is why this is an area of business about which there are many questions.  Why is a creative work automatically copyrighted but not other kinds of inventions?  Do copyright protections expire or do they last forever, like a trademark?  And what kind of legal protection does copyright offer the average person or business?  The answers to these questions help shed light on how people and businesses can protect creative property.

What is a copyright?

Let’s start with the basic definition of a copyright.  According to, copyright is a form of protection provided to the authors of “original works of authorship,” both published and unpublished.  The purpose of a copyright is to protect works of authorship as fixed in a tangible form of expression.   These are “exclusive’ rights” which gives creators the right to control the use of their work and the ability to earn from it.  In copyright law, ‘exclusive’, means that the copyright owner has the right to exclude others from using his or her work without first getting permission.

Through the mechanism of copyright, creators’ efforts are rewarded.  That’s because the ultimate goal of copyright is the creation and dissemination of knowledge. That is probably why copyrights are automatic, while patents and other forms of intellectual property protection are not.  On the other hand, the idea of copyright did not exist in ancient times, when authors frequently copied other authors at length in works of non-fiction. This practice was useful, and is the only way many authors’ works from ancient times have survived even in part.  That said, of all the creative work produced by humans anywhere, only a tiny fraction still has continuing commercial value.  It is for that tiny fraction that copyright is a crucially important legal device.

Copyrights cover:

1. Literary works, which includes books, newspaper articles, and blog posts. Even your last email would be considered a literary work. The definition of literary works is so broad it even includes computer programs.

2. Musical works, which includes musical notations of all kinds. The famous first four bars of Beethoven’s Fifth Symphony – which are thought to represent Fate knocking at the door — are considered musical work.  That composition itself is now, of course, public domain, meaning it is no longer protected by copyright.

3. Dramatic works, which includes plays, screenplays, and TV scripts.

4. Choreographic works, which includes dances, ballets, and mime performances.

5. Pictorial, graphic, and sculptural works, which includes paintings, drawings, photographs, and digital illustrations.

6. Motion pictures and other audiovisual works, which includes movies, live webcasts that are being saved, slideshows, and video podcasts.

7. Sound recordings.  While the musical notes that make up a song (the composition) is protected as a musical work, the actual recording of that performed notation is also protected as a sound recording.  So while the musical work of Beethoven’s Fifth Symphony may be public domain, any recent recording by a musician of that work is protected automatically by copyright.  Sound recordings are a distinct, independent and broader category from musical recordings because they also includes everything that can be recorded and reproduced that isn’t music, including speeches, sound effects, and audio books.

8. Architectural works.  Buildings that have elements that meet the general requirements for protection, particularly if they have sufficiently original design elements that are independent of the utilitarian purposes of the building, can be protected by copyright law.  For example, Frank Lloyd Wright’s unique building constructed for the Guggenheim Museum is protected by copyright law.

According to, Section 106 of the 1976 Copyright Act generally gives the owner of a copyright the exclusive right to do and to authorize others to do the following:

  • 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, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio­ visual works;
  • display the work publicly, 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;
  • perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission

However, the copyright protects the form of expression, not the subject matter of the creative work. For example, a person writing a book about the invention of Apple’s iPhone would have automatic copyright protection for the book.  But the copyright does not extend to the object about which the author was writing, namely the iPhone itself.  Clearly, Apple (the company) holds the patent for the iPhone itself, but they had to apply to get that patent.  Apple also holds the trademark for the name iPhone, as well as the trademark for the bitten apple logo and even the company’s name, Apple (which has nothing to do with fruit, and thus makes it eligible for trademark protection).  As another example, while a landscape painting of a particular vista of the Grand Canyon is copyright protected, that copyright does not keep someone else from taking a photo of that same vista of the Grand Canyon.

Although a copyright is a form of legal protection of intellectual property that is broad and generally beneficial to creators, it does have some exceptions.  These are circumstances in which a person does not need the permission from the copyright owner to use his or her work. These include quotation for the purpose of criticism and review, news reporting, education, research and private study, archiving and preservation.

Protection that Lasts More Than a Lifetime

Copyrights are registered by the Copyright Office of the Library of Congress. The registration processes for a copyright is basically an administrative process. The filing fee is small, the time to obtain registration is relatively short, and examination by the Copyright Office is limited to ensuring that the registration application is properly completed and suitable copies are attached.

All works published in the United States before 1923 are in the public domain and no longer protected by copyright.  Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years.  The timeframe for copyright protection is similar in many other countries as well.  However, there are exceptions.  For example, based on normal copyright timeframes, the copyrights to Anne Frank’s Diaries would be due to expire in the near future and would therefore be available for free use and to publish without permission.  However, in most countries, the general rule for the period of protection, namely the author’s (i.e. Anne Frank’s) lifetime, plus 50 or 70 years, does not apply to this particular work.  As a result of the complicated history of the original versions of the diary and its in-print versions, exceptions to the timeframe rule apply. Therefore, Anne Frank’s original texts, as well as the in-print versions of the diaries, remain protected for many more decades.

Protection that Pays Royalties

Copyright law provides for compulsory licensing and royalty payments in cases of infringement.  For example, recently an up-and-coming singer/songwriter agreed to an out-of-court settlement to share royalties for a song he wrote and recorded in 2014.  Many people felt this song sounded remarkably like another song recorded in 1989 by two other famous singer/songwriters.  What is significant is that the questionable song won the Grammy Award for Best Song for 2014, which means it is getting played on the radio a lot and purchased even more.  Based on their shared-royalties settlement, Petty and Lynne will be receiving a 25% share of songwriting royalties of Smith’s song in perpetuity.  Over time, that will come to a lot of money basically for copyright infringement of a song that was not even identical, just eerily similar.  This is unique from trademark law which has no analogous concept.  And patents are a whole different story.

Next week, we’ll look at patents and learn what can be patented and how patents work.  Stay tuned.

Quote of the Week

“I think copyright is moral, proper. I think a creator has the right to control the disposition of his or her works – I actually believe that the financial issue is less important than the integrity of the work, the attribution, that kind of stuff.” Esther Dyson


© 2015, Written by Keren Peters-Atkinson, CMO, Madison Commercial Real Estate Services. All rights reserved.

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