Keith Mack
Common law copyright refers to the protection of works through federal and state judicial decisions in the absence of specific legislation until the point of publication. In the United States, copyright protections are largely defined by the federal Copyright Act. Prior to the 1976 amendments to the Copyright Act, common law copyright law provided copyright protection based on old English law and state-enacted copyright laws. Common law copyrights protect original works of authorship such as literary, musical, and other artistic works, as long as they are fixed in a tangible medium. The enactment of the 1976 Copyright Act abolished common law and most state laws with respect to copyrights, stating that exclusive rights with respect to original works of authorship are governed exclusively by the Copyright Act.
| Characteristics | Values |
|---|---|
| Definition | Common law copyright refers to the protection of works through federal and state judicial decisions in the absence of specific legislation until the point of publication. |
| Copyright owner | Authors are typically the copyright owners, but companies, organizations, and other people besides the work's creator can also be copyright owners. |
| Works covered | Copyright protection applies to a wide range of creative works, including literary, artistic, musical, dramatic, and choreographic works, as well as computer programs, books, poems, blog posts, movies, architectural works, and plays. |
| Originality | Works are considered original when they are independently created by a human author and have a minimal degree of creativity. |
| Duration | For works created on or after January 1, 1978, the copyright term is the life of the author plus 70 years. For works made for hire, anonymous works, and pseudonymous works, the term is 95 years from the date of publication or 120 years from the date of creation, whichever is shorter. |
| Preemption | Federal copyright law preempts most state common law copyright claims, but there are exceptions for certain categories of works, such as pre-1972 sound recordings. |
| Publication status | Common law copyrights protect unpublished works, while published works are protected by statutory protections. |
| Notice | A copyright notice typically includes the copyright symbol © or the word "Copyright," the year of first publication, and the name of the copyright owner. |
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What You'll Learn
Common law copyright notice
A common law copyright notice is a way to assert a copyright claim over an original work. It is not required by law, but it serves as a deterrent to potential infringers and reminds the public that the work is protected by copyright.
In the United States, common law rights automatically protect original creations when they are made public, even without officially registering the trademark with the US Copyright Office. However, it is recommended to include a copyright notice as it prevents an infringer from claiming innocent infringement.
The copyright notice generally consists of three elements: the symbol (©), or the word "Copyright", the year of first publication of the work, and the name of the owner of the copyright. It should be clear, legible, and prominently displayed so that users can easily identify it. It is also important to update the notice each year to reflect the current year of publication.
Copyright protection applies to a wide range of creative works, including literary, artistic, musical, and dramatic works. It is important to note that copyright protection has a limited duration. For works created on or after January 1, 1978, the copyright term is the life of the author plus 70 years. For works made for hire, anonymous works, or pseudonymous works, the term is 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
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Copyright registration
Copyright is a type of intellectual property that protects original works of authorship. Works are original when they are independently created by a human author and have a minimal degree of creativity. Copyright protection applies to a wide range of creative works, including literary, artistic, musical, and dramatic works.
To register a copyright, you must submit a completed application form and a non-returnable copy or copies of the work to be registered. The easiest and fastest way to register a copyright is to work with a third party who is familiar with the process. For example, LegalZoom's copyright registration service simplifies the process by helping you collect the necessary documents and filing with the U.S. Copyright Office on your behalf.
The registration process is relatively similar, regardless of the type of work you want to copyright. There are two key requirements for copyright registration: originality and fixation. Originality means that the work must be independently created, not copied from an existing work. Fixation refers to a tangible medium of expression capable of perception and reproduction.
Once a copyright application is approved, the owner will receive a certificate of registration in the mail. It generally takes anywhere from three to nine months to process an application and issue a certificate. It's important to note that all information provided on the copyright registration form is available to the public and will be accessible on the Internet.
Additionally, copyright owners have exclusive rights, including the right to reproduce, distribute, display, perform, and create derivative works based on the original creation. Copyright ownership can be transferred or licensed to others, and it is essential to comply with any applicable statutory licenses and limitations.
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Public domain
In copyright law, the "public domain" refers to the status of creative works no longer protected by copyright law. Once a work enters the public domain, it can be freely used, shared, and reproduced without permission or legal restrictions.
Several factors can lead to a work entering the public domain. One of the most common reasons is the expiration of the copyright term. Copyright protection has a limited duration. For works created on or after January 1, 1978, the copyright term is the life of the author plus 70 years. For works made for hire, anonymous works, and pseudonymous works, the term is 95 years from the date of publication or 120 years from the date of creation, whichever is shorter. After this period, the work enters the public domain. For example, the works of Jane Austen, Lewis Carroll, Machado de Assis, Olavo Bilac, and Edgar Allan Poe are in the public domain worldwide as they all died over 100 years ago.
Some works are not covered by a country's copyright laws and are therefore in the public domain. For example, in the United States, items excluded from copyright include the formulae of Newtonian physics and cooking recipes.
Additionally, works may enter the public domain due to a lack of originality or failure to meet formalities. Works that don't meet the criteria for originality or fail to comply with proper notice or registration may not receive copyright protection and may enter the public domain.
Furthermore, authors may actively dedicate their works to the public domain. This can be done through tools like Creative Commons licenses or other public domain declarations. For example, reference implementations of cryptographic algorithms have been dedicated to the public domain by their creators.
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Originality
In terms of what constitutes an original work, there are various types of creations that fall under this category. These include literary works such as novels, short stories, poems, and articles; visual arts like paintings, drawings, sculptures, and photographs; musical compositions, including sheet music and lyrics; software and computer programs; and sound recordings such as music, spoken word, or other audio content.
It is important to note that certain elements are generally not considered creative enough to warrant copyright protection. These include titles, names, short phrases, slogans, familiar symbols or designs, variations in typographic ornamentation or colouring, and mere listings of ingredients or contents.
To enhance the protection of their original work, copyright owners can take additional steps such as registering their work. While registration is not mandatory, it is beneficial as it strengthens the legal protection of the work and enables copyright owners to enforce their exclusive rights through litigation. Registering within the specified timeframe is crucial, as failing to do so may result in challenges when claiming statutory damages, potentially requiring authors to prove actual damages, which can be complex and financially detrimental.
In the United States, common law rights automatically protect original creations when they are made public, even without official trademark registration with the US Copyright Office. However, including a copyright notice or disclaimer in the content is advisable as it discourages potential copyright infringement and unauthorised use of the work.
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Copyright ownership
In the United States, "common law copyright" is a term used to refer to most state law copyright claims. In general, copyright protection applies to a wide range of creative works, including literary, artistic, musical, and dramatic works.
While registering a work for copyright is not mandatory in the US, it is recommended to enforce exclusive rights through litigation and seek monetary damages and attorney fees if necessary. Copyright registration also provides value to the public by facilitating the licensing marketplace and providing a record of the nation's creativity.
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Frequently asked questions
Common law copyright refers to the protection of works through federal and state judicial decisions in the absence of specific legislation until the point of publication.
Common law copyright provides two essential protections: the right to prevent others from copying or using the works while unpublished, and the right to control the first publication of the work.
Examples of common law copyright include the Capitol Records v. Naxos of America case in 2005, which held that pre-1972 sound recordings could receive state common law copyrights, and the Hemlock Hat case, where the plaintiff claimed infringement of an alleged common law copyright related to a design affixed to a straw hat.
You can assert common law copyright over your work by creating a copyright notice, which typically includes the copyright symbol ©, the year of first publication, and the name of the copyright owner.
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