By Attorney Kelly Jesson Rains
A copyright protects an original work of authorship, whether in writing, video, or audio form.
Like trademarks, a common law copyright is created as soon as the work is authored. People should use the copyright symbol © to deter would-be infringers. Also like trademarks, despite the existence of common law protections, there are still numerous reasons for registering federally. To rely on federal copyright protections (versus state court), the work must be registered. This is important because federal law provides statutory damages, whereas in state court you might have to prove actual damages, which is difficult. If a registration application is submitted to the U.S. Copyright Office within five years after first publication of the work, it will be presumed that the copyright is valid. Finally, registering puts the world on notice that you own the work (and who to contact if someone wants to use the work for a fee). Copyrights last for the author’s life plus seventy years.
Sometimes, the author of the work does not own the copyright. This is true in two situations:
1) Work made for hire, and
2) Work commissioned.
These are two very narrow exceptions that are improperly overused. For the “work made for hire” rule to apply, an employee must create the work in the scope of their employment. This is oftentimes up for interpretation and dispute. A work that was not created within the scope of a creator’s employment cannot be made into a work made for hire by way of agreement.
Specially ordered or commissioned work is limited to the following uses:
Of course, an author can sell a copyright to another person. If the copyright is assigned or licensed to another, the author may limit the purchaser’s use.
While the Digital Millennium Copyright Act (DMCA) did not expand copyright protection, in 1998, it did make available a procedure whereby a person whose copyright is being infringed upon can send a notice to an internet provider, webhost, or search engine who must then take down the offending material. The law has specifics about what the notice has to include for it to be valid.
If you’re interested in getting more information about copyright or other intellectual property protection, please give Jesson & Rains a call.
What is intellectual property?
“Intellectual” property refers to creative works used in business that have economic value. The four most common types of intellectual property (“IP”) are trademarks, copyrights, patents, and trade secrets. Trademarks protect words, names, symbols, and logos that are identified with a brand; copyrights protect artistic works like books, music, and photographs; patents protect inventions; and trade secrets are property that are valuable and have been kept secret and out of the public domain.
We’ll be starting a series explaining each of these types of property in detail over the next few weeks. As the word “property” signifies, intellectual property is an asset. Thus, it is important for both business planning and estate planning. In the business context, it is crucial to determine who owns the IP. Is it the individual who brought it into the business (and will take it with them when they leave) or does the business itself own it? If there is a possibility for litigation, it may be worthwhile to form a separate LLC to own IP so the other business assets stay separate and protected. Next time you look at fast food packaging, you’ll probably see that the company’s trademarks are owned by a separate business.
For estate planning purposes, we want to know about IP just like any other asset – how much is it worth? Who inherits it? So make sure to share this information with your estate planning attorney.
The next blog article will go into trademarks. Stay tuned!
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