Copyright Infringment Lawyer, Internet Defamation, and Internet Privacy: Attorney Alert: Defining Original Works Subject to Copyright Protection

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July 29, 2008

Comments

The four factors judges consider are:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. Repackaging the original isn't enough. If, on the other hand, the secondary use adds value to the original this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.

A “derivative work” is a work based upon one or more preexisting works in which a work may be transformed or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

An example of a derivative work is primarily a new work but incorporates some previously published material. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes to a preexisting work will not qualify the work as a new version for copyright purposes.

To justify the use as fair, a person must explain how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

To justify the use as fair, a person must explain how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

Fair use is a doctrine that allows limited use of copyrighted material without requiring permission, such as use for scholarship or review. Fair use derives from free speech rights provided by the First Amendment.

A work that was created (fixed in tangible form for the first time) is automatically protected from the moment of its creation for the author’s life plus an additional 70 years after the author’s death.

Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy for the first time. Publication is no longer the key to obtaining federal copyright. The use of a copyright notice is no longer required under U.S. law, although it is beneficial. The use of notice is still relevant to the copyright status of older works.

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