USA Law and Practice Contributed by: Keith Medansky, Tamar Duvdevani, Michael Geller, Aislinn Smalling and Kristina Fernandez Mabrie, DLA Piper LLP
protected by a utility patent is presumed to be func - tional and as such cannot be protected under trade mark law. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works 17 USC § 102 sets forth the categories of works which may obtain copyright protection. Copyrights cover all original works of authorship fixed in any tangible medium of expression, whether published or unpub - lished. Generally, a work is considered original if it embodies some minimum amount of creativity. This includes but is not limited to literary works, musical works, choreographic works, graphic, pictorial and sculptural works, motion pictures, sound recordings and architectural works. 3.2 Essential Elements of Copyright Protection In order to qualify for copyright protection, a work of authorship must be independently created, original and fixed in a tangible medium. A work only needs a small degree of creativity to qualify. Copyright does not protect, for example: • ideas, procedures, methods, processes, concepts, principles or discoveries; • titles, names, short phrases and slogans; • works lacking human authorship; or • works lacking a minimum level of creative author - ship. 3.3 Copyright Authorship The author is the creator of the work, unless it is a “work made for hire”. A work created by an employee acting in the scope of his/her employment is owned by the employer as author. If the work is commissioned under a written agreement designating the work as “made for hire” and the work is of a type that qualifies for such treatment under 17 USC § 101, the author is whoever commissioned it. Only a human can be an author.
Joint authorship arises when two creators create a work with an intention that the work be a unitary whole or single work. Joint authors can independently exploit a work without consent of each other. However, the exploiting author must account to the co-author. 3.4 Copyright Rights Copyright provides the owner of copyright with exclu - sive rights, including to: • reproduce the work; • prepare derivative works; • distribute copies; • perform the work publicly; and • display the work publicly. In the US, moral rights are limited in scope and pro - tected by statute, namely, the Visual Artists Rights Act (VARA). VARA applies only to authors of works who have a “recognized stature”, and the works must be paintings, drawings, prints, sculptures or still photo - graphic images. VARA provides the author with various rights, includ - ing to: • claim authorship; • prevent the use of the author’s name on works the author did not create; • prevent use of the author’s name on any work that has been distorted, mutilated, or modified in a prejudicial way; and • prevent intentional distortion, mutilation or modifi - cation of a work that would prejudice the author’s honour or reputation. 3.5 Term of Protection and Termination For works after 1978, copyright protection lasts for a term of 70 years after the author’s death. Works for hire are protected for a term of 95 years from first publica - tion or 120 years from creation, whichever comes first. Works for hire and anonymous and pseudonymous works are protected for 95 years from first publication or 120 years from creation, whichever is shorter. Copyright in works that were created but not pub - lished or registered before 1978 has a duration of the
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