November 2009
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IP Overview: Copyrights Explained

copyright symbolUnited States copyright law protects original works of authorship that have been fixed in any tangible medium of expression.  Pretty much anything that you can write down or record is automatically protected from direct copying without your permission.  Everything from that flier for your company’s last promotion to the business plan that you spent weeks drafting in preparation for that product launch is covered.  As long as it’s original, and as long as you took the time to get it down on paper, you’ve got copyright protection.

The “originality” requirement of our copyright statute is a very low hurdle.  As long as you created it, and as long as it has the smallest amount of creativity, then a work of authorship qualifies for automatic protection.  Only the most basic and unoriginal material is considered ineligible for protection.  For example, the United States Supreme Court has ruled that alphabetized lists of names and contact information (e.g., phonebooks) are not original enough to be protected by copyright.  Also, anything that can only be expressed in a limited number of ways, e.g., contest rules or contract terms, will not be afforded protection.  Anything else is fair game.

Where many people run into trouble is the “fixation” requirement.  There is no protection for unexpressed ideas.  The statutory language is careful to point out that there is no limitation on what medium must be employed, but unless the expression is fixed in such a way that it can be duplicated, then you cannot stop someone else from getting it down and claiming their own expression.

With a couple of exceptions, initial ownership of copyright belongs to the person, or persons, who create a work of authorship.  In most cases, the protection starts from the moment of creation and lasts until 70 years after the author’s death.  Where an employee creates a work of authorship within the scope of her employment, this is known as a “work made for hire,” and the company is considered to be the “author” of the work.  However, since companies can potentially live forever, the life-plus-70 rule fails on works made for hire.  In these cases, protection lasts for 95 years from the date of first publication, or 120 years from the date of creation, whichever ends first.

As I’ve been pointing out all along, copyright protection exists automatically.  To use the word that Congress chose, protection “subsists” in the work upon creation — meaning that the author does not have to do anything special, apart from creating the work, to obtain the protection of the federal government.  However, depending on how you would like to use your protection, registration with the United States Copyright Office may be required.  For example, if you ever want to sue someone who has wrongfully copied your protected work, without a registration, you would not be able to obtain statutory damages or recover your attorneys’ fees.  Registration is a simple and fairly inexpensive process, and it can be done online for most works.  Everything you need can be found on the Copyright Office’s website.

A few last things that you should know about copyright are the major limitations to protection that exist.  There are some situations where you cannot sue someone for behavior that may seem like infringement.  For example, unlike patents or trademarks, independent creation is a defense to a claim of infringement.  This means that, even if someone duplicates your copyrighted work exactly, as long as she did it on her own, without actually copying your work, she cannot be successfully sued for infringement.  Copyright protection is only meant to protect an author from “wrongful appropriation.”  Additionally, the copyright statute specifically limits liability for so-called “fair use” of copyrighted materials.  This means that copyright protection cannot be used to prevent someone from copying your work for such things as criticism, news reporting, or research.

Copyright protection provides an important mechanism for ensuring that your business can reap the proper reward from materials that could be copied by an unscrupulous rival.  As an example, companies that invest thousands of man-hours in developing a software product would be unlikely to begin such a project knowing that a competitor could just steal the resulting lines of code without recourse.

This story was originally published on The Tactical IP Blog.

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