Ethical Considerations for Estate/Tax Planning - ABA YLD 101 Practice Series

By Blake R. Laurence

The practice of copyright law involves the efforts to secure, enforce, transfer, and authorize the use of copyrights in an original creative work of expression. Copyrights are a bundle of exclusive rights granted by governments to authors as incentives for the production of expressive works, including literary, artistic, audio and/or visual, dramatic, and architectural works. The rights are provided for a limited time, generally 50-70 years beyond the death of the last surviving author, after which the work enters into the public domain for anyone to use freely. The exclusive rights granted under copyright are control over the reproduction, distribution, alteration, public display and public performance of the work.

Copyright law protects the tangible expression of an idea, but not the idea itself. No matter how much "sweat of the brow" is put into the work, it is the original contribution of at least a "modicum of creativity" that entitles a work to copyright protection. Also, mere facts cannot be copyrighted, though a creative selection, arrangement, or coordination of facts may be subject to copyright.

The author of the work automatically receives a copyright once it is "fixed in a tangible medium". Registration with the Copyright Office is not required to create or maintain copyright, unless the owner institutes an infringement suit. However, registering in advance bestows certain advantages in the event a work is infringed. For instance, registration in advance entitles the author to pre-established damages and attorney's fees. Registration involves submission to the Copyright Office of a form, a fee (generally $45), and a non-returnable copy of the work.

The creator does not necessarily hold the copyright. Where the work is prepared by an employee, the employer and not the original creator is the holder of the copyright. On the other hand, a work created by someone for someone else outside of an employer/employee relationship, will belong to the creator unless an agreement, known as a "work for hire" agreement, is in place. Also, copyright holders may license or assign their rights to other parties. A license, particularly for a musical work, may be compulsory so that anyone can obtain the license for a fixed fee.

Once a physical copy is sold, the purchaser may re-sell the physical copy without the permission of the copyright holder. However, where only a license has been purchased, such as for computer software, the copyright holder retains his rights to control the copy.

Anyone who assumes the rights of the copyright holder for a given work without consent directly infringes the copyright. One may also be liable for the direct infringement of others, known as indirect infringement, which includes vicarious, contributory and inducement of infringement. Vicarious infringement occurs when someone is able to control the infringer, but for financial purposes does not. Contributory infringement occurs when a party knowingly induces, causes, or materially contributes to a direct infringement. Inducement of infringement may alternatively be a separate category of indirect infringement. Penalties are more severe if an infringement is willful.

Even if a party has assumed rights of the copyright owner without authorization, the facts may entitle him to an affirmative defense of "fair use". Four factors are considered in determining whether a use is fair: (1) the character of the use; (2) the nature of the copyrighted work; (3) the amount used; and (4) the effect on the market. The first factor may be most important since transformative uses are frequently deemed fair. A transformative use alters the work with "new meaning, expression, or message".

One may learn more about copyright law by reviewing the U.S. Copyright Office website at http://www.copyright.gov.


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