Know Your (copy)Rights

Considerations Regarding Copyright Law

Very often, there is confusion regarding what a copyright actually is, how to obtain a copyright, and the rights included with a copyright. A copyright is a property right in an original work of authorship. Examples of works that qualify for copyright protection in the United States include an article, book, photo, music, or software. These are often referred to as “works.” Copyright protection automatically arises at the moment a work is created. As discussed later in this article, registration of a copyright may be beneficial, but is not required to obtain copyright protection.

RIGHTS OF COPYRIGHT OWNERS
Copyright owners have an exclusive “bundle” of rights in their specific work, including, but not limited to, the right to: (i) reproduce the work (i.e., the copyright owner has the sole right to make copies of the work; (ii) prepare derivative works (i.e., the copyright owner has the right to modify or revise a work); and (iii) distribute the work (i.e., only the copyright owner has the right to sell the work).

For example, Howard previously wrote a book entitled, “The First Edition of the Finest Wood Flooring.” If Howard had a desire to create a second edition of this book, copyright law will allow him to prepare a derivative work and write the second book.

WHAT CANNOT BE PROTECTED BY COPYRIGHT?
The categories of works that are not able to be protected by copyright include:
• Ideas, methods, systems, processes, and concepts
• Names, titles, and short phrases (i.e., a domain name, name of a product or service)
• Typeface, fonts, and lettering
• Layout and design (i.e., formatting of a website page, book cover, or poster)
• Forms used to record information (i.e., address book, time card, or bank check)
• Familiar symbols and designs (i.e., the suits in a deck of cards, the peace symbol, or religious symbols)

Determining if a work can be protected by copyright is a fact-intensive inquiry. There is the possibility that a limited, narrow aspect of an individual’s work can be protected by copyright. The key question that the U.S. Copyright Office must be able to answer “yes” to is, “Is there a sufficient amount of original authorship in this work?”

It is also important to consider whether the work can
be protected under different intellectual property laws including trademark and patent law. For example, a slogan such as “Wood Washed So Good!” is not protected under copyright law, but would be protected by trademark law.

WORK MADE FOR HIRE
As mentioned, the person who creates a work owns the copyright to that specific work. However, if a company engages a contractor or vendor and the company desires to own all copyrights in any works created by the contractor or vendor, then the doctrine known as a “work made for hire” applies. Under a work made for hire, the ownership rights associated with the work of a contractor or vendor automatically transfer to the company. A specific work made for hire clause will be included in the agreement between the company and the contractor or vendor specifically confirming this arrangement.

Sometimes, certain works of a contractor or vendor are not covered by the U.S. Copyright Act. In order for the company to absolutely assure itself that it will own all copyrights in the works created by the contractor or vendor, the company will include an assignment clause in the agreement. If the work is not deemed a “work made for hire” under the U.S. Copyright Act, then the assignment clause steps in and assigns all copyright rights of those works created by the contractor or vendor to the company.

For example, Fun Floorwax Company hires Stuart, a freelance photographer, to attend the Galactic Floorwax Conference on behalf of Fun Floorwax Company. Stuart takes pictures of various booths at the conference, as well as the panel discussion.

Under copyright law, the individual who actually takes the picture is the copyright owner. However, in the agreement between Fun Floorwax Company and Stuart, a section includes language requiring Stuart to transfer ownership of the photographs to Fun Floorwax Company. By owning the pictures, Fun Floorwax Company can reproduce or display the photographs on its website. Although Stuart took the photos with his camera, the work made for hire relationship means that Fun Floorwax Company owns all copyrights in the photographs taken by Stuart.

Additionally, if the photographs taken by Stuart include individuals, Fun Floorwax Company should obtain consent from those individuals for Fun Floorwax Company to use their image and the photographs for business purposes of Fun Floorwax Company. It is also best if Fun Floorwax Company can receive a copy of any photo release entered into between Stuart and such individuals.

REGISTRATION OF COPYRIGHT

Registering a copyright with the federal government is not required, but is recommended. Applying for a copyright is simple and straightforward. Any individual wishing to register their copyright should visit copyright.gov/registration/. The “Registration Processing Time and FAQs” link includes vital information.

A copyright notice or copyright symbol communicates that an individual has ownership over such work. This is usually accomplished by including the word “Copyright” or a C in a circle to illustrate that the work is copyrighted. Use of the symbol is recommended, but not required.

Advantages of registering a copyright include: (i) having the possibility to file a copyright infringement lawsuit; (ii) being eligible for statutory damages and attorneys; or (iii) a presumption of truth regarding the information provided in the copyright registration certificate, including one’s ownership of a copyright.

COPYRIGHT INFRINGEMENT
Copyright owners must continually determine whether others are using their protected work without their permission. If a copyright owner learns of any unauthorized use of its copyright, then the copyright owner can seek
a claim for copyright infringement and, if the copyright is registered with the U.S. Copyright Office, petition for damages in federal court.

The following is a standard analysis used to determine if copyright infringement has occurred. First, the non-owner of a copyrighted work must have access to the original work and the non-owner’s work must be “substantially similar” to those aspects of the original work that are protected by copyright law.

Second, in order to determine what is deemed “substantially similar,” most courts implement an “ordinary observer” test. This test determines whether a typical lay person would recognize the non-original work as having been copied from the original work. If the lay person determines the non-original work has been copied, the non-owner of the copyrighted work has committed copyright infringement.

A defense to copyright infringement is “fair use.” This exception is very limited in its application and should not be consistently relied on as a defense. Recent court decisions have increased the limitation of the fair use doctrine.

Having the right to control certain uses of a created work is the cornerstone of copyright law. Upon its inception, the bundle of rights gives a copyright owner broad discretion to use the work in the future. Copyright law provides protection for people to benefit from their intellectual and creative works. It is an important concept to utilize and to obtain broad intellectual property rights for your organization. Each organization should ensure that proper measures are put in place to protect all copyrighted works and to require permission to be sought if such works want to be used by non-owners.

Barbara F. Dunn is a Partner with the Associations and Foundations Practice Group at Barnes & Thornburg, where she concentrates her practice in association law and meetings, travel, and hospitality law. She can be reached at 312.214.4837 or barbara.dunn@btlaw.com. Matthew E. Misichko is an Associate with the Associations and Foundations Practice Group at Barnes & Thornburg. Matthew can be reached at 312.214.4827 or matt.misichko@btlaw.com.

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