The value of a company’s intellectual property has never been higher. And for many companies, especially those in creative fields, their copyrights will be a very valuable asset. For that reason, it’s important for entrepreneurs to understand what a copyright represents, who owns it, and what constitutes copyright infringement.
What is a Copyright
A copyright, in the most basic sense, is just that–the right to copy something.
Of course, the rights are quite a bit broader, and the owner of a copyright will have the exclusive right to reproduce the work, distribute the work, publicly display or perform the work, and create derivate works using the work.
All kinds of works can be protected by copyright. This includes “creative” assets like music, art, writings, and more. It also includes things you may not consider as very “creative” such as business documents, presentations, and even computer code.
Copyright owners don’t have to register their copyright to receive protection. Rather, copyrights vest when an original work is created and reduced to a tangible medium (jump to the next section to understand who owns the copyright). Once the copyright vests, the rights extend a very long time–usually the life of the author plus 70 years (and sometimes longer).
With that said, it is often a good idea to secure your copyright by obtaining a copyright registration from the US Copyright office. In most situations you can do this online for a nominal fee.
Who Owns the Copyright
One of the most important things to consider when dealing with copyrights is who owns the copyright.
For starters, the default rule is that the person that creates the work owns the copyright to the work. However, if the creator is creating the work within the scope of their employment, then the employer will likely own the work.
It gets a bit tricker when the work falls outside the scope of the employee’s employment, or the work is created by an independent contractor (see this article for more about the differences between employees and contractors). In these situations, it is important to have the creator assign the work to the company in writing. In limited situations, you can claim the work is a “work made for hire” but that is a limited provision in the copyright act. Thus, if one of these scenarios is at play, you should use some kind of written agreement (for example, a contractor agreement when you hire contractors) and include in the agreement an assignment of the work and copyright.
(Note, the owner of a copyright can also change if one owner assigns the copyright to another owner in writing.)
What Constitutes Copyright Infringement
Copyright infringement occurs when someone exercises any of the exclusive rights listed above without permission from the copyright owner. It is important to note that the copy doesn’t have to be identical. Rather, any copy that is substantially similar may constitute copyright infringement.
For this reason, you should make sure you don’t make substantially similar copies of a copyrighted work, and you should monitor the market to see if anyone is making substantially similar copies of your work.
In most situations, copyright infringement disputes can be resolved without litigation. However, sometimes you must go to court to enforce your rights. And keep in mind that damages (especially for registered copyrights) can be quite high. So this is not something to take lightly.
Also, you generally should not rely on “fair use” without talking to a copyright attorney. This is another limited doctrine and sometimes it will protect you, but often times, it won’t.
This article is general in nature and is not legal advice. You should speak to a licensed attorney about your unique circumstances before relying on this article.
Chris Brown represents startups, freelancers, and small businesses through his law firm, Pixel Law. He also co-founded Contract Canvas, a digital contract platform for creative professionals. You can find him on Twitter @thepixellawyer.
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