Identifying, Securing, and Defending Intellectual Property Rights

Copyrights

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Copyright is a form of protection provided to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. Examples of such works include books, photos, graphic work, video, audio visual works, choreographic works, periodicals, sound records, music, software, webpages and other art.  This protection is available to both published and unpublished works. When the work is “fixed in a tangible medium” copyright grants the copyright holder the right:

  • To reproduce the work in copies or phonorecords
  • To prepare derivative works based upon the work
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, and
  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Fixing the work in a tangible medium can include recording or capturing the work, or writing the work on paper or saving it on a computer, among other means.

What does a copyright protect?
A copyright protects the expression of an idea, but not the idea itself. Also words, short phrases and slogans are not generally protected by copyright, but might be protectable under trademark law.

You should consider applying to register your copyright to obtain additional benefits as explained below. However, registration is not required to own a copyright. Generally registration should be sought within three months of the first publication of the work for maximum benefit, although registration may be applied for after the three month period.

Notice of Copyright
The use of a copyright notice is not required for all works published after March 1, 1989. However, it is recommended that you provide a copyright notice on your works because it informs the public that the work is protected by copyright. It further identifies the copyright owner(s) and provides the first year of publication. If an infringer had access to copies of the work having a copyright notice it is likely they will be unable to claim a defense based on innocent infringement to mitigate damages.

The use of a copyright notice does not require a copyright registration to be applied for or granted by the Copyright Office. You should apply a copyright notice to your works when they are first published.

The Form of Copyright Notice
A copyright notice has three elements (1) the copyright symbol © (the letter C in a circle) or the work Copyright or the abbreviation Copy.; (2) The year of first publication of the work, or if a derivative work (e.g. a revised edition) incorporates previously published material, the year date of the first publication of the derivative work; and (3) the name of the copyright owner.

Examples:
© 2013 Erickson Law Group, PC.
Copyright 2013 Erickson Law Group, PC.

Where Should the Copyright Notice be Placed?
Notice should be affixed to copies of the work so as to give reasonable notice of the claim of copyright. In books, the copyright notice can be found on the title page, the page immediately following the title page, either side of the front or the back cover, or the first or the last page of the main body of the work. See Copyright Circular #3: Copyright Notice for additional examples on where to place a copyright notice in various works. http://www.copyright.gov/circs/circ03.pdf.

How Long Does My Copyright Last?
The answer is that it lasts so long that you should not worry about how long it lasts. For works originally created on or after January 1, 1978, the work is protected from the moment of creation and lasts the length of the author’s life plus an additional 70 years after the author’s death. For works made for hire (specific circumstances) and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Obtaining Copyright Ownership: Have It In Writing.
If you did not personally create the work, but paid someone else to create the work for you, you should have a written agreement that provides that you will own the copyright in the resulting work. If you have a business and your employee created the work within the scope of his or her employment, then the work may be considered a “work made for hire”, in which case the employer would own the copyright in the work without a writing. However, “work made for hire” can be complicated. Therefore, it is best to have a written agreement with your employees that perform creative work that provides that the employer will own the copyright of any work the employee creates within the scope of his or her employment.

If a work is not a “work made for hire,” then the work is generally owned by the creator, unless there is a written agreement transferring ownership. Therefore, if you hire a consultant to do creative work for you (and the work is not a work made for hire), unless there is a written agreement between you and the consultant specifying a transfer of copyright ownership, the work created by the consultant will be owned by the consultant.

Make sure you have a signed agreement transferring ownership to you when working with others that are doing creative work for you.

Why Register?
Registration is not required in order to obtain copyright protection in your work. However, registration of a copyright with the federal government provides the following benefits:

  • Registration establishes a public record of the copyright claim.
  • Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
  • If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
  • If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
  • Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

The availability of statutory damages for registered works provides a strong incentive against copying. Statutory damages can range between $750 and $30,000 per infringement. Those damages can be increase to up to $150,000 per infringement, in the court’s discretion, if the court finds that the infringer acted willfully.

What if someone is copying my work?
You have an option to sue them (if you have a registered mark) or to send them a cease and desist letter telling them to stop copying.

When I’m creating my work how much of other’s work can I use?
Remember that copyright protects the expression of an idea not the idea itself. Therefore, when referencing other’s works, do not copy the referenced work word-for-word. Develop your ideas independently or from many sources so that your work is not similar to any one of them.

If you want to use other’s graphical works or photographs, you must get permission from the copyright owner of those works or photographs before using them in your work. The default is that when works are created the creator (or in some cases another under agreement) owns a copyright in the work. Therefore if you find material online or in other sources, you cannot assume that it is free to use, unless there is an agreement allowing you to use it.

We provide the following copyright services
The Erickson Law Group assists clients with copyright registration, licensing, enforcement and defense. Our attorneys have experience handling copyright issues related to computer software licensing and software development agreements. We also handle issues confronting artists, authors, and photographers and companies that employ these creatives.