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Key information on U.S. copyright registration and enforcement.

Works Protected by U.S. Copyright Law (17 U.S.C. § 102)

(1) Literary works;

(2) Musical works;

(3) Dramatic works;

(4) Pantomimes and choreographic works;

(5) Pictorial, graphic, and sculptural works;

(6) Motion pictures and other audiovisual works;

(7) Sound recordings;

(8) Architectural works.


Works Not Protected by U.S. Copyright Law

(1) Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries (typically protected by patent law);

(2) Works not fixed in a tangible form, such as improvised dance or speech not fixed in a tangible medium;

(3) Titles, names, short phrases, slogans, symbols, or designs (typically protected by trademark law);

(4) Variations of typographic ornamentation, lettering, or coloring;

(5) Simple lists of ingredients or contents (such as general or basic recipes).

Rights of Copyright Authors or Owners (17 U.S.C. § 106)

(1) The right to reproduce the work;

(2) The right to prepare derivative works;

(3) The right to distribute copies;

(4) The right to perform the work publicly;

(5) The right to display the work publicly;

(6) (For sound recordings only) The right to perform the work publicly by means of a digital audio transmission.

Regarding U.S. Copyright Registration

Copyright protection is available without registration. However, to sue for copyright infringement in U.S. courts, the work must be registered with the United States Copyright Office.

If registration is secured within five years of publication, or before the publication, the certificate of registration constitutes prima facie evidence of the validity of the copyright.

Under Section 504 of the copyright law, statutory damages are available if actual damages cannot be proved, or it is expensive to prove them. These can range from $750 to $30,000 per work, at the discretion of the court, and up to $150,000 for willful infringement if the work was registered prior to the infringement or within three months of publication.

How U.S. Courts Determine Copyright Infringement

In U.S. courts, the determination of copyright infringement typically involves two key tests:

• Substantial Similarity Test

• Access Test

  1. Substantial Similarity Test: This test evaluates whether the accused work is substantially similar to the protected elements of the original copyrighted work. It has two components: a. Extrinsic test: It involves objective criteria that can be analyzed, like themes, settings, and characters. b. Intrinsic test: It assesses the total concept and feel of the works from the perspective of an ordinary observer.

  2. Access Test: This test evaluates whether the alleged infringer had access to the copyrighted work. Direct evidence of access is rare, so courts often look for circumstantial evidence, such as widespread dissemination of the original or a chain of events that could have led to access.


Defenses Against Allegations of Infringement

The plaintiff’s work is not protected by copyright: e.g., the subject matter falls within categories not protected by copyright law, the copyrighted term has expired, the original work was not fixed in a tangible medium, or the original work lacks a requisite level of creativity.

Independent creation: The defendant claims to have created the work independently.

Fair use doctrine: Uses such as criticism, comment, news reporting, teaching, scholarship, or research might not constitute infringement. Four factors are considered when determining fair use:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

(4) The effect of the use on the potential market for or value of the copyrighted work.

Statute of limitations: The plaintiff did not act within three years after the infringement became known.

Laches: The plaintiff unreasonably delayed in pursuing their rights.

Estoppel: The plaintiff, by words or conduct, allowed the defendant to infringe.

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