USA Law and Practice Contributed by: Keith Medansky, Tamar Duvdevani, Michael Geller, Aislinn Smalling and Kristina Fernandez Mabrie, DLA Piper LLP
3.2 Essential Elements of Copyright Protection In order to qualify for copyright protection, a work of authorship must be independently cre - ated, 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, con - cepts, principles or discoveries; • titles, names, short phrases and slogans; • works lacking human authorship; or • works lacking a minimum level of creative authorship. 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 employ - ment is owned by the employer as author. If the work is commissioned under a written agree - ment 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 cre - ate 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 exclusive 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 protected 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 photographic images. VARA provides the author with various rights, including 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 modi- fied in a prejudicial way; and • prevent intentional distortion, mutilation or modification 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 publication 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 published or registered before 1978 has a dura - tion of the author’s life plus 70 years or more, depending on the nature of authorship as described above.
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