Copyright Basics

Many business owners are unsure of what a copyright protects and if you even need a copyright or not.  This is an area of the law that you should have at least a basic knowledge of in order to better protect your or your company’s interests.

  • What is a copyright? Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.
  • What does a copyright protect? Copyright protects original works of authorship including literary, dramatic, musical, and artistic works. Examples include software, poetry, novels, movies, songs and architecture.
  • What does copyright not protect? Copyright does not protect facts, ideas, systems, or methods of operation. However, it may protect the way these things are expressed.
  • What rights does a copyright give its owner? Section 106 of the 1976 Copyright Act generally gives the owner of a copyright the exclusive right to do and to authorize others to do the following:
    1. To reproduce the work in copies or phonorecords
    2. To prepare derivative works based upon the work
    3. To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
    4. To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
    5. To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works
    6. In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
  • How long does a copyright last? This depends upon whether it has been published, and, if so, the date of first publication. For works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors.
  • Must all works be registered? No, it is not required. In fact, copyright exists from the moment the work is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
  • What are the benefits to registration? Registration is highly recommended because it serves as a public record of the copyright and gives the owner a legal presumption of ownership nationwide.  Additionally, registration makes it possible to bring a claim of infringement since registered works may be eligible for statutory damages and attorney’s fees in successful litigation.
  • How do I register? To register a work, submit a completed application form, a nonrefundable filing fee ($35 if you register online or $50 if you register using Form CO) and a nonreturnable copy or copies of the work to be registered.
  • When setting up its website, what should a small business do to avoid violating copyright law? Most small business owners want to add pictures, text and graphics to their site. To be safe, one should write your own original content for the website, use pictures you drew or create and design an original layout.If there is something the business owner would like to copy, they should make sure it is in the public domain. A public domain work is a creative work that is not protected by copyright and which may be freely used by everyone. The reasons that the work is not protected include: (1) the term of copyright for the work has expired; (2) the author failed to satisfy statutory formalities to perfect the copyright or (3) the work is a work of the U.S. Government. Business owners must be aware that just because an image or text does not have a copyright notice, it does not mean that it is not copyrighted. A business owner is advised to never assume that a work is in the public domain or that it is not copyrighted.  Therefore, prior to using any preexisting image or text, one should always contact the owner of the work, if possible, for permission or a license. Using copyrighted text and graphics without permission could lead to a claim of copyright infringement.
  • Who owns the copyright to works created by employees? The general rule is that an employer is the owner of a work prepared by an employee in the scope of his or her employment. However, I recommend that all key creative employees sign, preferably as a condition for employment, an agreement assigning to the company all rights in any intellectual property created while employed at the company.
  • Who owns the copyright to works created by independent contractors? This is important because when a business hires an independent contractor to create a computer program or other work, the business does not automatically own the rights to the work unless it obtains a written assignment of copyright ownership before the independent contractor starts work.

Intellectual property is an intangible asset, which may be why so many business owners fail to recognize its value and take steps to protect it at the correct time in the life cycle of their business.  It would be to your advantage to have a basic understanding of the information discussed above.  Speaking with an intellectual property attorney to determine if the company needs protection of its works and to discuss methods for avoiding copyright infringement may be a helpful prevention mechanism for future problems.

Are you looking for copyright legal services for your small business? If so, contact Ritter Law Firm today for a free consultation.