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FAQ about U. S. Copyright Protection
What is Copyright?
Copyright is a form of legal protection provided for "original works of authorship fixed in any tangible medium of expression."
What Requirements must a work meet to be protected under U.S. law?
- The work must be original (that is, not copied from another source), and it must represent a certain minimum amount of creative authorship; and
- It must be fixed in tangible form (written down, recorded, fixed in machine-readable form, or set down in some other form from which it may be perceived or communicated for a period of more than transitory duration) under the authority of the copyright owner.
What types of works are protected under U.S. Copyright law?
Works of the performing arts, including music (with or without words), dramatic works, sound recordings, choreography, and audiovisual works (including motion pictures);
- Literary works such as books, periodicals, advertisements, and computer programs;
- Pictorial, graphic and sculptural works.
NOTE: U.S. copyright protection does not extend to ideas or to short phrases. Furthermore, copyright does not protect the design for a useful article (other than architectural works) or format.
What rights does U.S. Copyright protect?
- The right to copy or reproduce the work
- The right to publish it
- The right to perform it publicly
- The right to record it
- The right to display it
- The right to make new versions of it
How is U.S. Copyright secured?
U. S. copyright protection is secured automatically at the time a work is created and fixed in tangible form under the authority of the copyright owner. Registration, while advantageous, simply puts a claim on record, and does not secure a copyright.
Who owns the U.S. Copyright?
The author is the initial owner of copyright. Where a work is "made for hire", the employer is the author and owner of copyright. Copyright may be transferred by a written document, by inheritance, or other operation of law.
What is a "Work made for hire" under U.S. Law?
- A work prepared by an employee with in the scope of his employment; OR,
- A work specially ordered or commissioned for certain uses (e.g., a motion picture, magazine article, a translation, a supplementary work illustrating, introducing or prepared as a secondary adjunct to another work, or a compilation) if the parties expressly agree in writing that the work is to be considered a "work made for hire."
How long does U.S. Copyright protection last?
- Works created in 1978 or later: Life of the author plus 50 years.
- Works registered or published before 1978: 28 years from the date of publication or registration in unpublished form, followed by a renewal term of 47 years.
- Works "made for hire": 100 years from the date of creation or 75 years from the date of publication, whichever is shorter.
Works for which copyright was secured prior to 1964 had to be renewed in order for the renewal term to vest; otherwise, the copyright expired after the original 28-year term. Works in which copyright was secured in 1964 through 1977 no longer have to be renewed to maintain protection, but there are advantages to registering a renewal claim.
Under the General Agreement on Tariffs and Trade (GATT), the copyright in certain non-U.S. works will be restored, despite the lack of a renewal registration. This provision of the GATT is outlined in the section entitled "General Agreement on Tariffs and Trade As It Affects U.S. Copyright Protection."
U.S. COPYRIGHT REGISTRATION
What are the advantages of U.S. Copyright registration?
- Registration puts a claim on public record.
- If registration is made within five years of publication, the certificate is prima facie evidence of the validity of the copyright and the facts stated thereon.
- For U.S. works and works of non-Berne Union origin, registration is prerequisite to the filing of an infringement suit in court.
- If registration is made within three months of publication or before infringement, the plaintiff in a successful infringement suit is eligible for statutory damages and attorney's fees in the event of litigation.
What are the advantages of renewal registration in the 28th year?
- Renewal copyright will vest in the name of the renewal claimant on the effective date of the renewal registration.
- Renewal registration will constitute prima facie evidence of the validity of the facts stated on the certificate and the copyright in the renewed and extended term.
- The right to use the derivative work in the extended term is affected, in that the renewal claimant for a renewed work can terminate an assignment made by the deceased author authorizing the exploitation of a derivative work.
What are the time limits for renewal registration?
Renewal registration may be made beginning in the 28th calendar year after copyright was originally secured by publication with notice or registration in unpublished form. If the year date in the copyright notice is earlier than the publication date, renewal may be made in the 28th year from the date in the notice.
GENERAL AGREEMENT ON TARIFFS AND TRADE AS IT AFFECTS U.S. COPYRIGHT PROTECTION
How does the GATT implementation legislation affect the public domain status of works?
One of the provisions of the GATT implementation legislation recently passed into law in the United States is that copyright registration will be restored for certain works that have heretofore been considered to be in the public domain in the U.S. for the following reasons:
- Publication without copyright notice
- Failure to register a copyright claim within the first term
- Failure to timely renew
- Failure to meet the manufacturing requirements
- Lack of protection for sound recordings fixed before 2/15/72
- Lack of national eligibility at the time of publication
What works are eligible for restoration?
To be eligible, a work must have at least one author (or rightholder, in the case of sound recordings) who was a national or domiciliary of an eligible country. It must have been first published in an eligible country and not published in the U.S. during the 30-day period following publication in such eligible country, and must not be in the public domain in their source country. Excluded are works ever owned or administered by the Alien Property Custodian, which, if restored, would be owned by a government or instrumentality thereof.
What countries are eligible?
Nations, other than the U.S., that are members of the World Trade Organization, that adhere to the Berne Convention, or are subject to a Presidential proclamation are eligible.
Who owns the restored Copyright?
Ownership vests initially in the author (or, in the case of sound recordings only, the initial rightholder of the work) as determined by the law of the source country.)
How long does restored protection last?
The work will be protected for the remainder of the term that it would have enjoyed had it originally secured U.S. copyright protection, provided that the work is not in the public domain in its source country.
May derivative works based on restored works continue to be exploited?
Works derived from restored works (e.g., a motion picture version of a restored novel) can continue to be exploited, provided the copyright owner and the reliance party come to an agreement regarding compensation for the use. Otherwise, the matter may be decided in District Court.
How does one determine if a work is eligible for U.S. Copyright protection under the GATT?
The key factors to consider in making this determination are:
- Is the work in the public domain in the U.S.? Why?
- Who is (are) the author(s) under the laws of the source country?
- If the author is deceased, when did he or she die?
- What is the nationality of the author(s)
- Is the source country a member of the Berne Union or World Trade Organization?
- When was the work first published?
- Where was the work first published?
- What is the date of any subsequent U.S. publication?
- What is the work's copyright status in its source country?
How do I determine if a work is in the public domain?
The copyright in a work eventually expires, and no longer protects the work. Such a work is considered to be in the "public domain" and is free for anyone to use. Because different countries have different copyright laws, a work may be protected in some countries but not in others. Also, new versions of works based on public domain works may be protected by copyright, even though the underlying work is no longer protected. Determining whether a work is in the public domain can be a complex matter, and requires accurate research and the advice of your legal counsel.