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Copyrights
Copyright covers literary and musical works including dramatic, choreographic, pictorial, graphic and sculptural, audiovisual (including motion pictures), sound recordings, and architectural works.13 Copyright does not protect the idea of the work and thus ideas, facts, functional elements of a copyrighted work, and stock characters and plots are excluded from protection. Copyright is created in a work of authorship at the minute it is "fixed in a tangible medium," through which it can be communicated. Thus, there are no formal requirements that the author should comply with before copyright vests in the work. Registration in the Copyright Office is a mere formality and no examination to assess originality, or to exclude ideas as opposed to expressions, is made. Nonetheless, lack of registration will preclude the plaintiff from seeking statutory damages for the infringement under Section 504(c) of the Copyright Act. Section 405(c) provides that the court may award damages ranging from $750 to $30,000 per infringement and may award up to $150,000 per infringement in cases of willful infringement.
Copyrights are valid for the life of the author plus 70 years, or 95 years from the date of first publication or 120 years after creation of the work for works made for hire. Copyright gives the owner the exclusive right to reproduce, prepare derivative works based upon, distribute, publicly perform and display the copyrighted work. This includes the right of the copyright owner in sound recordings to perform the work publicly by means of digital audio transmission.
Copyrights may be narrowed or completely invalidated when scrutinized by the courts. Litigation may be instituted either by the owner to sue an infringer or by another seeking a declaratory judgment that the copyright is invalid. Under judicial scrutiny the work may be found to contain unprotectable elements that are considered to be in the public domain on the basis that they represent ideas or facts, as opposed to expressions. The matter is far from simple and the tests are different depending on the type of work under scrutiny. Works that are highly creative and expressive enjoy a strong versus a weak protection, or a robust versus a thin copyright, as referred to in this area. A work with a robust copyright enjoys great protection against any form of copying and thus can be used to gain a strong market position. In addition, the Digital Millennium Copyright Act, enacted in 1998, provides protection for copyright owners against circumvention of or tampering with digital rights management systems. The Act also defines the liability of online service providers and enables the copyright owner to demand the takedown of the Web material wherever infringement is suspected.
The scope of protection is further limited by the fair use doctrine, which allows the use of the copyrighted work in certain circumstances, such as those stipulated under Section 107 of the Copyright Act. Section 107 provides that uses for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research" are fair. To determine if a certain use is fair or not, the court should consider four basic factors under Section 107. These are:
The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the use
The effect on the plaintiff's potential market
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