Ideas and the Law: Using Intellectual Property to Protect You Part 2 (Copyright)

As previously discussed on this blog, there is little legal recourse available if someone steals your idea. In certain limited circumstances you may have legal recourse but even then you have to have the resources to enforce your rights. Therefore, it is in inventors, entrepreneurs and companies best interest alike to consider what steps can be taken to protect their rights. The previous post in the series addresses the use of patents to protect inventions that are useful.

Another right that protects the unique expression of an idea is copyright. Specifically, copyright grants creators a bundle of exclusive rights that automatically vest in works of original authorship which creators, or assignees, may enforce against third parties. The bundle includes, but are not limited to, the rights to make copies, derivative works, distribute or publicly perform the works. Unlike with patents, copyright attaches automatically to qualifying works once they have been fixed in a tangible medium of expression. A qualifying work can be in nearly any medium, from literary works to websites and databases, as long as the work is original.

While copyright attaches automatically, the Copyright Act of 1976, as amended, provides additional benefits to those copyright owners who register the protected works with the Copyright Office of the Library of Congress. The additional benefits available to owners of registered copyrights include the ability to maintain a copyright related lawsuit in federal court and to register the works with Customs to prevent importation of counterfeit works. Additionally, registration within three months of publication, or prior to the act of infringement, is required to obtain statutory damages.

The exclusive rights that copyright grants, and the ability to register the works with the Copyright Office, vest in the creator of the qualifying works. A creator is generally the person who creates the works. However, in certain circumstances, where there is a written agreement between the parties, the copyright may vest in a third party as a “work made for hire”:

1) Where an employee creates the work in the course of his or her employment duties; and
2) Where the creator is engaged under contract to a third party to create, or contribute to, a collective work; motion picture or other audiovisual work; translation; supplementary works to another copyright protected work; compilation; instructional texts; testing materials and atlases.

Therefore, from the outset, it is best practices to obtain written agreements from all parties, including founders, who create works that copyright may protect.

The term of copyright varies depending on who the creator is, and it can get confusing!

Individual Creator = life of the author plus seventy (70) years
2 or more Creators = life of the last surviving author plus seventy (70) years
Works Made for Hire = 95 years from first publication or 120 years from first creation, depending on which term expires first.

Significantly in the United States creators of copyright have the right to terminate any transfers that purport to transfer all of the rights (an assignment or exclusive license) after thirty five years. Therefore where possible it is best to have works that are vital to a company be treated as a work made for hire.

Strategic Practices:

1) Obtain written agreements from any people who create copyright protected works for your company;
2) Register valuable works with the Copyright Office of the United States Library of Congress; and
3) Include the © notice on any materials your company creates, including the website.

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About Nancy Prager

Nancy Prager is an attorney based in Washington, D.C. She represents a wide range of clients on matters from intellectual property to estate planning. Before starting her own practice, she practiced with firms in Memphis and Atlanta, as well as providing business development services to technology companies. She launched her practice to offer strategic legal services to clients at an affordable rate. Additionally, Nancy is a sought after speaker and writer on issues related to the convergence of intellectual property, technology and media. Nancy was asked to write a series of commentaries for News.com on the emerging legal issues related to the transmission of content on the internet. She has spoken to organizations and conferences around the country on issues related to the convergence of technology, content and intellectual property, as well as strategic legal issues for companies, individuals and artists. Journalists often rely on Nancy as a resource for emerging legal issues. Nancy has a strong commitment to social justice. She has founded, or co-founded, a number of organizations and programs that provide tangible services to their constituencies. For example, while a student in law school she developed the Domestic Violence Advocacy Center that provides legal services to victims of domestic violence. Additionally, she has been involved with a number of organizations that provide services to children and their families, including serving on the boards of the Harwood Center and Porter Leath Children’s Services. She is a graduate of Wake Forest University School of Law and the University of Wisconsin, Madison. She is a member of the District of Columbia Bar, the State Bar of Georgia and the State Bar of Tennessee. She has been a member of a variety of legal organizations including the Copyright Society of the USA and the American Bar Association.
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One Response to Ideas and the Law: Using Intellectual Property to Protect You Part 2 (Copyright)

  1. Pingback: Ideas and the Law: Using Intellectual Property to Protect You (Trademarks and Trade Secrets) | Protect | and | Leverage

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