How to Copyright Your Creative Work
by Intellectual Property Attorney Bill Honaker, the IP Guy
Copyright protection is important to your business
Copyrights are everywhere in business. They include your logos, website, marketing content, images, PowerPoint presentations, and even your product assembly instructions. Copyright protection attaches upon the expression of an idea in tangible form. Basically, if you can give someone a copy, then it’s automatically protected. You don’t have to register the work with the United States Copyright Office to have protection. But, you definitely should!
What Copyrights Protect
Copyright law protects creative works that are original works of authorship. This includes all types of creative works: written words like books, articles, and product descriptions; pictures, like images on the Internet, in magazines, and in brochures; videos, like recorded webinars, movies, and recorded product demonstrations, even the layout of restaurants, architectural drawings and much more. All of these are someone’s intellectual property, and they have valuable rights.
The Copyright Act grants five rights to a copyright owner:
- The right to reproduce the copyrighted work.
- The right to prepare derivative works based upon the work.
- The right to distribute copies of the work to the public.
- The right to perform the copyrighted work publicly.
- The right to display the copyrighted work publicly.
Infringement damages can be huge, but you must register.
To bring a copyright lawsuit in the United States, you have to be the copyright owner of the work, and have a copyright registration with the United States Copyright Office. All copyright cases are handled by federal courts. A copyright holder is entitled to an injunction, actual damages and the infringer’s profits that exceed actual damages.
But, since these can be difficult to prove, statutory damages are available. These can be $750 to $30,000 per infringement and up to $150,000 for willful infringement. The successful party may also be entitled to attorney’s fees. The amount of statutory damages and attorney’s fees are at the discretion of the court, but most courts dislike copying, so they tend to award accordingly and are encouraged to award attorney’s fees.
To be entitled to statutory damages you have to register your copyright before any infringement of unpublished work. If the work is published, you have to register before any infringement, unless registration is made within three months after the first publication of the work. In other words, you should register your copyrights before publication or within three months of publication.
How to Register
You can go to the Copyright Office and register online by completing the forms appropriate for your work. The forms are:
- Literary Works. These are works that explain, describe, or narrate a particular subject, theme, or idea through the use of text, rather than dialog or dramatic action. Generally, literary works are intended to be read; they are not intended to be performed before an audience.
- Performing Arts. These are works that are intended to be performed for an audience. This category includes a wide variety of creative works, including music, lyrics, sound recordings, scripts, screenplays, choreography, motion pictures, video games, and similar types of works.
- Visual Arts. These include a wide variety of artistic works, including pictorial, graphic, and sculptural works, as well as architectural works. Examples of visual arts works include paintings, sculptures, photographs, and other types of works.
- Digital Content. These include a wide variety of works that are used with computers, tablets, smartphones, video game platforms, and other electronic devices. It also protects works that are used or distributed on the internet, such as websites, blogs, and other online content. To register digital content, determine the predominant authorship and submit as a literary work, work of the visual arts, or work of the performing arts.
- Motion Pictures. These contain a series of related images that are intended to be shown with a projector, digital display, or another device. When the images are shown in successive order, they create an impression of movement that is perceptible to the eye. Examples of motion pictures include movies, television shows, video games, animations, and similar types of works.
- These include photographs that are created with a camera and captured in a digital file or another visual medium such as film. Examples include color photos, black and white photos, and similar types of images.
It’s critical to know who owns the Copyright.
Under copyright law, the author or creator is the copyright owner, and has the right to bring copyright litigation. There are two ways a business can own copyrights:
- The author of the work assigns the copyright in writing to the business, or
- As a work for hire, which means the author is an employee of the business (not an independent contractor) and created the work within the scope of their employment.
Business owners commonly assume that since they paid for the work, they must own it, but just paying for it is not enough to own the copyright.
A Copyright Infringement Story
An automotive supplier paid a photographer $75,000 to take pictures of employees for their annual report. The pictures were such a hit, the company decided to use them on their website. They paid the full price for the pictures and assumed they had the right to use them in any way they wanted. They were surprised when the photographer threatened a lawsuit for copyright infringement.
The photographer owned the copyright. She was only permitting the pictures to be published in the annual report. Any other use was copyright infringement. She never agreed to allow the use of the pictures in other ways. They settled for an additional payment of $30,000.
In the auto supplier case, the photographer was the copyright owner, since she took the pictures. It doesn’t matter that the auto supplier paid for the work, they didn’t get an assignment in writing.
To own the copyright the business needs a written assignment from the photographer. The only exception to this rule is when an employee creates the work within the scope of their employment, i.e. as a “work for hire” to make the business the author and therefore the owner. Just being hired and paid is not enough to make a person an employee.
Copyrights are everywhere in business. Some are more important than others and you should protect the important ones through registration. The forms are online and the filing fee is less than $100.00. It is best to have a law firm show you how to complete the forms for the first time. But, once you understand how, it’s not hard to do filings on your own. If someone copies your work, such as content in brochures, images online, or product descriptions, having registered them will make resolution much easier. Threatening someone with statutory damages usually results in their quick decision to stop.
Hopefully, you own the copyrights that you use. If not, you may be the one getting the letter inviting you to a lawsuit.
Have questions about trademarks, patents, copyrights, trade secrets, or other types of Intellectual Property? Let’s talk and assess your IP today.
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