Intellectual property

What is copyright?

what is copyright

Copyright is a United States Constitutional right which provides authors with certain exclusive rights in their “writings” and art for a limited time.   “Writings” broadly means any work of original expression in any form and medium, including literary, artistic, musical and any other kinds of work. Authors are also created broadly to include all creators of these works. Companies can and many times do own copyright.

A work qualifies for copyright protection under the Copyright Act only if it meets certain requirements. These include originality (they need to be unique) and fixation (they have to be fixed in a tangible medium of expression such as on paper, canvas, photographic film, or video and audio tape). Copyright includes the right to reproduce the work, adapt the work to create derivative work, to distribute the work, to perform the work and publicly display the work.

Many times an employee or independent contractor produces the work for the securing intellectual property entity. For example, many times trade logos, brochures, operations manuals, posters etc. are created not by the entity itself but outside vendors.   Accordingly, it is important to make sure that the copyright is assigned to the company. Otherwise, technically the person creating it owns it. This type of agreement is called a “work made for hire.” A work made for hire if it either created by an employee in the scope of employment, or specifically ordered, or commissioned by another party.   If it is created or commissioned by another party, it is essential that a work made for hire agreement be created.

Copyright does not require formal registration. However, I recommend that my clients, with very limited exception, pursue formal registration. The reasons include that:

  • With a few differences, in order to sue in court for copyright infringement, a copyright owner must register its copyright in a work before suing for infringement.
  • A registered copyright owner may recover statutory damages and attorney’s fees only if the work was registered before the infringement commenced (or within three months after first publication).
  • The registration is generally prima facie evidence of the copyright’s validity.
  • Registration may eliminate an innocent infringement defense.
  • The copyright owner may record the registration with U.S. Customs Service to stop the importation of infringing copies.

Timing

The requirement of when to file for US Copyright Office is not concrete.  Copyright protection can and does attach when the document is created. However, formal US Copyright protection only attaches when the formal copyright is filed with the office. My advice is to do so as soon as possible so that formal Copyright protection can attach and there are recording of process.