[state copyright laws preempted]; see also California Civil Code Section 980-989 [owner of original work of authorship not fixed in any tangible medium has exclusive ownership thereof].17 U.S.C. Section 102 provides a description of the types of materials that can be copyrighted under the Act and includes “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.” Protection is also available for compilations and derivative works, but only to the extent the work contains original work of authorship.

As important as what the Act protects is what it does not protect. The Act does notprotect “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. Section 102(b). Hence, while an author may create an original work of authorship concerning, for example, the inner workings of Company A’s widgets, the Act does not protect the widgets themselves, the processes, for producing them or their method of operation.

To be protected under the Act, all that is required is that the work be original and fixed to “any tangible medium of expression.” “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. . . .” 17 U.S.C. Section 101. Once fixed, the work is protected by the Act without further action and registration with the United States Trademark Office. While registration is optional, it is required before the owner of the copyright created can bring a lawsuit claiming infringement of the owner’s rights to the original work.

Under the Act, the owner of a copyright has six exclusive rights in its works: (i) to reproduce the copyrighted work in copies or phonorecords; (ii) to prepare derivative works based upon the copyrighted work; (iii) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (iv) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (v) 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, to display the copyrighted work publicly; and (vi) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. Section 106. These rights exist for the life of the owner plus seventy (70) years if the owner is an individual and ninety-five years in the case of a “work for hire.”

One who violates the rights of the owner of a copyright is known as an “infringer.” In a lawsuit for infringement of copyright, the federal courts can issue an injunction to enjoin the infringer from continuing to infringe, or to impound or destroy infringing materials and award damages for actual damages incurred by the owner of the copyright and sometimes statutory damages.

While copyright law may seem, at first blush, rather simplistic, it is anything but. If you have created an original work of authorship and want to ensure that your work is and continues to be protected by the Copyright Act, or if your copyrighted material has been infringed, you need to seek the services of an experienced lawyer to help you understand the law and what can be done in the case of an infringement. Michael Leonard, Esq. of San Diego Corporate Law can assist you with those endeavors. To schedule a consultation with Mr. Leonard to discuss your registration needs, or any other business-related matter, you can contact him by e-mail or by telephone at (858) 483-9200.