As a trial lawyer, I have successfully handled several copyright infringement cases representing both the plaintiff and the defendant. Although these types of cases involve an area of the law that most people and lawyers are not familiar with, it really is not that complicated once you sink your teeth into them.

Generally, copyright protects the original works of authorship fixed in any tangible medium of expression, including: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

Copyright protection of an original work of authorship does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. The term “literary works” is not meant to suggest any criterion of literary merit or qualitative value, rather the term has been broadened to include catalogs, directories, and similar factual, reference, or instructional works and compilations of data. It also includes computer data bases, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves. Also, “Advertisement Copy” is considered “Literary Works.”

To establish copyright infringement, plaintiff would have to prove both the ownership of a valid copyright and copying by the defendant. In order for Winn’s to be copyrightable, the mailer must be deemed “original,” or as elaborated by the Supreme Court: “[o]riginal, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”

In regards to copyright protection with respect to compilation or derivative works, copyright protection extends only to the material contributed by the author of such work, and not the preexisting material used in the work.

In general, copyright registration is a legal formality and is permissive. A copyright is created when the work is created, therefore, registration is not a condition of copyright protection. However, no action for infringement of the copyright in any United States’ work shall be instituted until pre-registration or registration of the copyright claim has been made in accordance with the applicable statute. Note, however, that failure to register prior to bringing suit is curable, and several jurisdictions have allowed the plaintiff to amend its complaint after registering with the Copyright office.

For more information or a free consultation, please contact the Maryland personal injury lawyers of Silverman, Thompson, Slutkin & White, LLC. or call Steve Silverman at 410-385-2226.