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The term 'copyright' refers to the exclusive right to make copies of written items such as books, music, and plays. Copyright protection is provided by the government of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works, whether published and unpublished and regardless of the nationality or residence of the author. Copyright protects the author's original expression as contained in the work. It does not usually extend to ideas, procedures, processes, methods, systems, discoveries, names or titles.

The owner of a copyright has the exclusive right to (and to authorize others to):

A copyright does not protect the idea or concept; it only protects the way in which an author has expressed an idea or concept.

What Does A Copyright Protect?

Literary works, Visual Arts, Performing Arts, Sound Recordings, and Serials can be protected with a copyright. (Serials are literary works published in a series of installments, such as magazines, newspapers, bulletins, journals and digests.)

How Does One Obtain Copyright Protection?

Copyright protection arises automatically when an "original" (owing its origin to the author) work of authorship is "fixed" (sufficiently permanent to permit it to be perceived, reproduced, or otherwise communicated) in a tangible medium of expression. Registration with the Copyright Office is optional, but you have to register before you file an infringement suit, and most importantly, registering early will make you eligible to receive attorney's fees and statutory damages in a future lawsuit.

What Is the Scope of Protection?

Anyone who violates any of the exclusive rights listed above is an infringer. A copyright owner can recover actual or, in some cases, statutory damages from an infringer. Further, courts have the power to issue injunctions to prevent copyright infringement and to order the impoundment and destruction of infringing copies of copyrighted works.

As noted above, copyright protects against copying the "expression" in a work as opposed to the "idea" underlying that expression. Nonetheless, an alleged infringer does not need to copy a work exactly to be liable for copyright infringement. If a defendant's work is "substantially similar" to the original work, a court will still find infringement.

What Is the Term of Copyright Protection?

The duration of a copyright, for works created by individuals, is the life of the author plus 70 years (for works created after January 1, 1978). For "works made for hire" (see next paragraph), the copyright term is 95 years from the date of first "publication" (distribution of copies to the general public) or 120 years from the date of creation, whichever expires first.

Who Owns The Copyright?

Generally, the copyright is owned by the person who create the work. Collaborative works are owned jointly by the co-creators of the work, as long as it was the intention of the coauthors that their contributions would be considered as an inseparable whole. If a work is created by employee within the scope of his or her employment, the employer owns the copyright because it is a "work made for hire." The copyright law also includes another form of "work made for hire": it applies only to certain types of specially commissioned works. In order to qualify the work as a "specially commissioned" work for hire, the creator must sign a written agreement stating that it is a "work for hire" prior to commencing development of the product.

Why You Should Copyright Your Software and Online Applications

Copyright law is the most important legal protection available to software publishers. Here's why.

One of the best ways for software authors to protect their work is to register it with the U.S. Copyright Office. Registration is easy and cheap. For the significant benefits copyright provides, it's one of the great insurance deals of all time.

You don't have to register your work to get copyright protection — the instant your software becomes fixed in a tangible medium, you own the copyright. That means that no one may copy, distribute, display, or make adaptations of the work without your permission. However, actual copyright registration provides you with significant advantages.

For a comprehensive discussion of copyright law, see Nolo's Copyright Resource Center.

Registration Allows You to Sue Infringers

If you want to stop someone from using or otherwise infringing on your work, you must sue the infringer in federal court. However, in order to do so, you must first have registered the copyright with the U.S. Copyright Office. If you have to register in a hurry (so you can file your lawsuit), you have to pay several hundred dollars extra for "expedited registration." But, if you've already registered your copyright, you are set to go.

Registration Gets You Statutory Damages

There is another more compelling reason to register as soon as possible after you publish the software. All copyright owners may ask for actual damages in a copyright infringement lawsuit. However, if you registered the work before the infringement began or within three months of the date the work was published, you may also be entitled to recover:

This is significant. Because it is often difficult to demonstrate how much the infringment damaged the copyright owner, actual damages can be minimal. And lawyer fees and court costs in federal lawsuits are expensive. The ability to obtain statutory damages and attorneys' fees and costs will increase your chances of recovering enough money to make your lawsuit worthwhile.

Registration May Keep You Out of Court

Finally, early registration can actually help keep you out of court. An infringer who knows that you could recover substantial statutory damages in court may be more willing to negotiate and settle out of court.

When Registration May Not be Worthwhile

If what you're publishing has no value to anyone but you, you may want to just place a copyright notice on the material and not bother to register. But in most situations, if your work is valuable enough to publish, it's valuable enough to register.

How to Register a Copyright

Copyright registration is a simple process. First, you fill out a brief application form, which requires some basic information about the work, including:

Then, send the application, a small fee (usually $45), and one or two copies of all or part of the software program to the U.S. Copyright Office. For information about the deposit requirements for software copyrights, see the Copyright Office's Circular 61.

Nolo's book Web & Software Development, by Stephen Fishman, contains all of the necessary forms and step-by-step instructions to apply for copyright registration.

Software and Application Development Agreements: Protect Your Copyright

Get your software development agreement in writing and include these important terms.

A written software development agreement is key to getting the product you want (if you are the client), getting paid (if you are the developer), preventing disputes, and providing ways to solve problems if they develop. And, if the parties end up in court, it establishes their respective legal duties.

You don't need a lawyer to draft a software development contract — you can do it yourself. This article doesn't cover all possible nuances of software contracts, but it does provide an overview of some of the most important points that should be covered by any software development agreement.

Work Phases

In the contract, break down the project into discrete parts or stages, often called phases or "milestones." The contract should require the developer to deliver an acceptable product at the end of each stage in order to get paid a specified amount. This makes it easier for both sides to monitor the developer's progress and resolve problems early on in the project — or even terminate the project.

Advantage for software client. Getting the work in phases avoids the danger of getting an unsatisfactory product at the very end.

Advantage for the developer. Having the client sign off on each phase of the project is the best way to avoid unwarranted claims of nonperformance or unsatisfactory performance by the client when the project is concluded. This approach also gives the developer an opportunity to deal with the client's changing needs and wants.

Software Specs

Software specifications are the software equivalent of a builder's blueprint. They attempt to define the software to be created and provide a guide for determining if and when the software has been satisfactorily completed. The more complete the specifications, the less likelihood there will be misunderstandings which can lead to client dissatisfaction, withholding of payment, and possibly litigation. The specifications are the heart of any software development contract.

There are many ways to write specifications. One way is to draft a "functional specification" in nontechnical language that the client can understand. The developer may also prepare a prototype or demonstration program to show the client how the software will look and function. Later, the developer should prepare a far more detailed and precise technical specification.

Payment Arrangements

There are two basic ways to pay a developer for creating custom software: a pay-per-hour (time and materials) agreement, or a fixed-price agreement.

Time and materials agreement. Under a time and materials agreement, the client pays the developer for the time spent and actual costs incurred in creating the software. This payment scheme is often favored by developers since the developer is assured of payment even if the project takes longer than originally anticipated.

Fixed-price agreement. Under a fixed-price agreement, the client pays the developer a fixed sum for the entire project. In theory, this payment scheme favors the client by giving certainty as to what the project will cost. Moreover, if payments are tied to the progress of the developer's work, it gives the client substantial leverage to insist on timely and successful completion of the project.

However, as a practical matter, clients often agree to pay developers more money if the project takes more time than anticipated. Otherwise, the developer may quit or end up delivering a hastily completed and shoddy product.

Transfer of Copyright Ownership

One of the most important functions of a software development agreement is to establish who will own the intellectual property rights to the software to be created. This is often one of the most hotly contested issues between the developer and client and can easily become a deal-breaker.

Developers own the copyright to software unless the developer is the client's employee or the software is part of a larger work made for hire under a written agreement. In order to own the copyright, the client must have an agreement transferring ownership from the developer to the client.

There are many ownership options available, ranging from sole ownership by the client to ownership by the developer with the client's merely having a license to use the software. And there are many alternatives between these two extremes. Depending on the amount of money the developer is paid, any of these options can be satisfactory.

Ownership of Background Technology

Software developers will normally have various development tools, routines, subroutines and other programs, data, and materials that they bring to the job and that might end up in the final product — for example, code used for window manipulation, displaying menus, data storing, and printing. One term for these items is "background technology."

If the developer transfers ownership of the software to the client, the client may end up owning this background technology as well. Developers should avoid this by making sure the development agreement provides that the developer retains all ownership rights in this material. But, in this event, the agreement should give the client a nonexclusive license to use the background technology that the developer includes in the software.

Warranty Provisions

Generally, a warranty is a promise from the seller that the product will do what it is supposed to do for a specific or reasonable time period, and that the seller will fix or replace it if it does not. Warranty provisions are included in most custom software development contracts. However, since this is an area of active bargaining between the developer and client, these provisions vary widely.

Warranty of software performance. Warranties of software performance are typical in many contracts. In this warranty, the developer promises that the software will work the way the developer said it would and will fix it free of charge if it doesn't. Such warranties typically last from 90 days to one year after the software is delivered.

Dispute Resolution

The single most important provision in any development contract is the procedure for resolving disputes. It is often advantageous to settle disputes without going to court — which can be extremeley expensive. You can do this through arbitration or mediation.

Arbitration. In arbitration, a person or panel decides the merits of the issues and renders a decision, which may or may not be binding, depending on the arbitration agreement. Many commercial contracts today include a binding arbitration provision. Be aware that, by agreeing to binding arbitration, you're basically giving up your right to go to court to enforce the contract.

Mediation. Mediation is less formal and cheaper than arbitration and, by its nature, is never binding. Typically, the mediator either sits the parties down together and tries to provide an objective view of their dispute or shuttles between the two sides as a cool conduit of what may be red-hot opinions.

How to register your copyright and get maximum protection from the U.S. federal copyright laws.

Why should I register my work with the U.S. Copyright Office?

You must register your copyright with the U.S. Copyright Office before you are legally permitted to bring a lawsuit to enforce it.

You can register a copyright at any time, but registering it promptly may pay off in the long run. "Timely registration" — that is, registration within three months of the work's publication date or before any copyright infringement actually begins — makes it much easier to sue and recover money from an infringer. Specifically, timely registration creates a legal presumption that your copyright is valid, and allows you to recover up to $150,000 (and possibly lawyer fees) without having to prove any actual monetary harm.

How do I register a copyright?

You can register your copyright by filing a simple form and depositing one or two samples of the work (depending on what it is) with the U.S. Copyright Office. There are different forms for different types of works — for example, form TX is for literary works while form VA is for a visual art work. Forms and instructions may be obtained from the U.S. Copyright Office by telephone, 202-707-9100, or online at www.copyright.gov.

Registration currently costs $45 per work. If you're registering several works that are part of one series, you may be able to save money by registering the works together (called "group registration").

For detailed information on the registration process, see The Copyright Handbook, by Stephen Fishman (Nolo).

What role does a copyright notice play?

Until 1989, a published work had to contain a valid copyright notice to receive protection under the copyright laws. But this requirement is no longer in force — works first published after March 1, 1989 need not include a copyright notice to gain protection under the law.

But even though a copyright notice is not required, it's still important to include one. When a work contains a valid notice, an infringer cannot claim in court that he or she didn't know it was copyrighted. This makes it much easier to win a copyright infringement case and perhaps collect enough damages to make the cost of the case worthwhile. And the very existence of a notice might discourage infringement.

Finally, including a copyright notice may make it easier for a potential infringer to track down a copyright owner and legitimately obtain permission to use the work.

What is a valid copyright notice?

How are copyrights enforced?

If someone violates the rights of a copyright owner, the owner is entitled to file a lawsuit in federal court asking the court to:

Whether the lawsuit will be effective and whether damages will be awarded depends on whether the alleged infringer can raise one or more legal defenses to the charge.

What are defenses to a claim of copyright infringement?

If someone has good reason to believe that a use is fair — but later finds herself on the wrong end of a court order — she is likely to be considered an innocent infringer at worst. Innocent infringers usually don't have to pay any damages to the copyright owner, but do have to cease the infringing activity or pay the owner for the reasonable commercial value of that use.

Do countries outside the U.S. offer the same copyright protection?

Copyright protection rules are fairly similar worldwide, due to several international copyright treaties, the most important of which is the Berne Convention. Under this treaty, all member countries — and there are more than 100, including virtually all industrialized nations — must afford copyright protection to authors who are nationals of any member country.

All countries in the Berne Convention must offer copyright protection that lasts for at least the life of the author plus 50 years, and must be automatic without the need for the author to take any legal steps to preserve the copyright.

In addition to the Berne Convention, the GATT (General Agreement on Tariffs and Trade) treaty contains a number of provisions that affect copyright protection in signatory countries.

Together, the Berne Copyright Convention and the GATT treaty allow U.S. authors to enforce their copyrights in most industrialized nations, and allow the nationals of those nations to enforce their copyrights in the United States.

Ten Tips for Songwriters: Credits, Copyrights, and Coauthors

Songwriters are often ill-equipped to handle the many business and legal issues that arise in their work. Here are ten tips to make your songwriting a success.

You may have written an outstanding song with a fabulous melody, great lyrics, and memorable hooks. Yet your work doesn't stop there. Songwriting raises many legal issues such as: who gets the credit for a song, how are royalties split, can you claim tax deductions for home studios, and should you register a copyright. Here are ten tips to help manage the legal and business side of your songwriting.

1. Figure Out Songwriting Credits, Now!

If you're writing songs with others, as soon as you finish the song, agree with your collaborators as to how to split potential revenues. If you wait until after you have a deal or record the song, you could end up sorting out credits and payments with band members who have long since left the group. Many bands also include non-writing members in the income. You don't need a formal contract on who gets the credits; an informal written agreement will suffice.

Consider a Band Partnership Agreement

If you're in a band that's earning money, owns equipment, and has a working career, use a band partnership agreement. For help on creating a band partnership agreement, including blank agreements on disk, see Music Law: How to Run Your Band's Business, by Rich Stim (Nolo).

2. How to Decide Who Gets Songwriting Credits

A songwriting copyright is awarded to those who jointly contributed to the song's structure, chord progressions, and lyrics. This can be anyone, even the members of the rhythm section (in many songs — especially in rock, pop, and dance music — a bass or drum part is so integral to the song that it becomes as important as the melody). The best way to decide:

3. Publicize Songwriters' Names

Once you've established who wrote a song, publicize the names and how to contact you or your music publisher. When preparing music for downloads — for example MP3s, AACs, or WMAs — make use of the text tags that allow you to encode the names of the songwriters and any related copyright information.

4. Consider Cowriting With a Dead Songwriter

Having trouble writing a catchy tune? You might consider trying the approach of Vera Matson, who took a civil war song, "Aura Lee," and added her own lyrics. The result was "Love Me Tender," a monster hit for Elvis Presley and many other artists. Older music (published before 1923) like "Aura Lee" isn't protected by copyright, and therefore is said to be in the "public domain." It's free for anyone to copy.

Others may use these tunes as well but cannot copy the unique elements that you add. For more information about locating tunes in the public domain, consult Steve Fishman's book The Public Domain: How to Find Copyright-Free Writings, Music, Art & More (Nolo).

5. Register With BMI and ASCAP

BMI (Broadcast Music, Inc.) and ASCAP (American Society of Composers, Authors, and Publishers) — known as performance rights organizations — monitor radio and television stations, nightclubs, websites, and other entities that play music. They collect royalties from these places and pay the royalties directly to the music publishers and songwriters (so you get payments from them, not your publisher or manager).

Be sure to register with BMI or ASCAP and keep your information current. For more information, check their websites at www.bmi.com and www.ascap.com.

6. Don't Be Afraid to Give Up the Copyright for a Deal

"Don't give up your copyright," is the cry often heard from musicians and songwriters. Yes, it's true that the music business is rife with tales of woe about songwriters like Richard Berry, who gave up his copyright for "Louie, Louie" for $750. (Berry eventually won a $2 million court judgment over the song.)

The reality is that just about every songwriter who signs with a major music publisher gives up the copyright to the song. In return, the publisher pays the songwriter a hefty portion of the royalties over the life of the copyright. Often, the songwriter, not the music publisher, earns the bigger share of the songwriting royalties and benefits from the music publisher's hustle.

The bottom line: If you're dealing with a reputable music publisher, don't be afraid to sign off on copyright — especially if an attorney examines the deal for you.

7. Market Your Songs to Nontraditional Media

Changes in technology have altered the ways in which songs earn money. The source for most music listening hours is neither CDs nor radio but video games.

In addition, advertising agencies, motion picture and TV companies, and Internet websites have all opened up new licensing opportunities. For example, MTV discovered one songwriter at MP3.com and licensed his music for background in its Real World television series, resulting in payments from MTV and later from BMI.

8. Consider Taking a Lower Percentage of Revenue for an Established Publisher

If you create your own music publishing company you'll get 100% of the songwriting revenue. If you sell your song to an existing music publisher you'll probably earn 60-75% of the song revenue. But don't assume that getting a larger percentage of the revenue is always better. An established publisher may be better equipped to get you deals, especially lucrative ones like putting your songs in a movie or an advertisement.

9. Copyright is Automatic

You do not have to register your music with the U.S. Copyright Office in order to get copyright protection. In most countries, including the U.S. and Canada, all that is required for a song to be copyrighted is that it be "original" and "fixed." "Original" means that the song is original to the writer and that it was not copied from another source. A work is "fixed" when it exists in some tangible manner such as sheet music, a tape recording, or saved onto a computer disk.

Even though copyright registration is not necessary to protect your song, it can help protect it from infringement, especially if your song is registered prior to an infringement or within three months of its release (you may be able to recover more money from an infringer in that case). For more information on copyright registration, see Music Law: How to Run Your Band's Business, by Rich Stim (Nolo), or check out the U.S. Copyright Office website at www.copyright.gov.

10. Tax Breaks for Home Office Use

If you regularly use part of your home exclusively to compose and record your songs, and you have no other fixed location where you do such things, you can claim a home office tax deduction. How much you can claim toward your home office deduction depends on how much (what percentage) of your home you use as a home office or studio.

For example, if you use 20% of your home, you can allot 20% of your home office expenses (such as rent, depreciation, mortgage interest, property taxes, electricity, gas, insurance) to the home office deduction.

You may lose the capital gains tax exemption. If you do take the home office deduction and then sell your home, you could lose the capital gains tax exemption on the home office portion of your home. However, this won't happen if you live in the home two out of the five years before you sell it.

For more information on the home office deduction, read IRS Publication 587, Business Use of Your Home, available from www.irs.gov, or Nolo's book Deduct It!, by Steve Fishman.

Copyright Articles

Copyright Basics

What Is A Copyright?