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Protecting Material Through Copyrights

By Roger Hood, Partner, Duffy, Sweeney & Scott, [email protected]

Did You Know?

  • Copyright protection is available for a wide variety of works, including computer software, web site content, advertisements, and other materials
  • Although a "Copyright Notice" is not absolutely necessary, it should be used because it provides additional protection
  • Businesses need to be careful about how they protect ownership of copyrights in material created for them by employees, outside contractors, and consultants
  • Businesses should make formal copyright registration a regular part of their ongoing "Best Practices"

What is Copyright?
Copyright is a form of intellectual property protection provided by the laws of the United States and other countries to authors of original work of authorship including literary, dramatic, musical, and artistic, and certain other intellectual works. Protection provides the owner of the copyright the exclusive right to copy, create derivative works, display, and otherwise control the use and distribution of an original work. Copyright protects the expression of the ideas (but not the ideas themselves) and is available for both published and unpublished works.  Examples of copyrightable material include computer software, web sites, advertisements, photographs, artwork graphics, and music/sound recordings.

Does a Company Need to Use a Copyright Notice? 
Prior to March 1, 1989, the copyright law of the US provided that published copies of copyrighted works must bear a specified notice as a condition of protection. Today, the copyright to a work is effective at that time the work is created and fixed in a tangible form. However, the copyright notice is still important as it puts the public on notice that the work is protected by copyright.  Furthermore, carrying the proper notice will preclude a potential infringer from claiming "innocent" infringement (i.e. that he or she did not realize the work was protected). 

Properly Identifying the Copyright. 
The copyright notice consists of the following three elements: (1) the word "copyright," or abbreviation "Copr.," or the symbol "c" in a circle ©; (2) the year of first publication of the work; and (3) the name of the copyright owner in the work.

How Does a Company Obtain Rights In Original Work? 
Ownership of copyright vests initially in the author or authors of the work. A written agreement is typically used to transfer ownership of a copyright from the author to another party such as a company.  This is identified as a "work-for-hire" arrangement, where the author assigns his/her rights to the company.  In the employment context, a work for hire provision is recommended to confirm operation of the work-for-hire status. This may be a stand-alone agreement, or it is often included in an employment or confidentiality agreement that is signed by the employee.  Development of joint works, or works through an independent third party contractor or consultants, require additional protection to ensure that ownership rights in the copyright are appropriately assigned by the author to the company paying for development of the work.  Failure to properly acquire the copyright rights in a work-for-hire can leave a company with an implied license of inadequate scope or use, including the inability to utilize the copyrighted work in new products or further commercial endeavors.

How Does a Company Obtain Stronger Protection For Copyrighted Work?
Although formal copyright registration with the US Copyright Office is not required to protect and preserve a copyright, it is a relatively inexpensive protection ($30 per application) and we recommend making it a regular part of any clients’ established business practices. Here’s why:

  1. To file a copyright infringement suit, the work must be formally registered and certificates of registrations made within five (5) years of publication constitute prima facie evidence of the validity of the copyright and facts stated in the certificate, which puts the onus on the infringer to prove invalidity;
  2. Copyright registration must be made before an infringement occurs, or within three months after publication of the work, in order to obtain "statutory damages" (up to $150,000 for willful infringement per work infringed) in lieu of proving actual damages, along with possible recovery of attorneys fees and costs; and
  3. Licensing, collecting royalties, custom transactions, and other business dealings may require a registration certificate, and even if they do not, registration helps to create value for the copyrighted material, which can be sold and licensed like other property.

For these reasons, we strongly recommend that companies make copyright registration a regular part of their ongoing business "Best Practices."  For further information regarding copyright protection and/or the copyright registration process, please contact Charles Schmidt, Esq., or Ralph Gaboury, Esq. at Duffy, Sweeney & Scott, Ltd, One Turks Head Place, Suite 1200, Providence, RI 02903; tel. (401) 455-0700.

Roger Hood is a partner with the firm Duffy, Sweeney & Scott, Providence Rhode Island and specializes in intellectual property. He can be contacted at [email protected]


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