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.
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.