In Corporations, Intellectual Property, LLC

Obtaining a copyright is one of many tools used to protect an individual’s or business’s intellectual property. Registering a copyright is not, in fact, required to become the owner of the work. It does have additional benefits such as granted the owner of the copyright the right to sue for infringement and provides additional notice of the copyright. Registering a copyright is a simple and painless process and one that any author (particularly those looking to monetize their works) should consider pursuing.

Copyrights are governed by Title 17 of the United States Code. It explains that copyright protects “original works of authorship fixed in any tangible medium of expression…” Specifically, it details the following works of authorship: “literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound records; and architectural works.”

As you can see, copyright law is quite broad. However, there are several notable works that are not protected by copyright law: ideas, facts, and data. Additionally, logos and slogans may be eligible for a trademark but cannot be protected under copyright law. An eligible work does not have to be registered or published to obtain protection. Nor does it need to display the copyright symbol, ©.

Ownership. The creator of the work is the owner by default. However, it is common today for employers to have their employees enter into assignment agreements that shift the ownership from one person to another or to an entity. Assignment agreements are fairly common with large companies who require new employees to transfer ownership of their works to the employer. Essentially, employers provide the resources and salaries to assist them in creating the work and require that in return the employee shifts ownership to the employer.

Another agreement shifting contract is called “work for hire” whereby a contract assigns the company as creator and owner of the work. The duration of a copyright is quite lengthy, lasting 70 years after the death of the author. A corporation’s copyright lasts 120 years.

Registration. To enforce your copyright against an infringer, you must first register your copyright. There is a small fee for registration. The owner of infringed work can privately sue for damages and attorneys’ fees. You can also sue for vicarious and contributory infringement.

Public Domain. Public domain should not be confused with public availability. Just because you can cut and paste something easily off the internet does not mean it is in the public domain. The public domain consists of those works that are unprotected or have lost their protection. If a work of authorship is not in the public domain, then an individual would need to fall under an exception such as obtaining permission to use the work (see below, Defenses).

Defenses and Fair Use. The defenses to infringement are considered Fair Use. These include using the work for commentary, parody, news reporting, research, and education. There is a four-factor test deployed to determine whether an infringement is considered fair use. The factors are: nature of the copied work, purpose of the work, amount of the original work that was taken, and the effect of the infringement on the original work’s value.

Digital Millennium Copyright Act. The DMCA was passed in 1998 to address complex copyright issues as we move forward in the digital rights age. If your business or works of authorship are online, you should consult an attorney to ensure that you are in compliance and know your rights under DMCA.

Intellectual property is a fascinating area of law. Some projections state that 80% of company’s assets are now in intellectual property. If you or your business has intellectual property worth protection, I encourage you to consult an attorney to learn about the tools available to you. You can learn the basics of such tools by reading my article, Protecting Your Intellectual Property in South Carolina.


About the Author

Wesley Henderson is a business attorney with Henderson & Henderson. His Charleston, SC practice focuses on helping businesses navigate their legal environment, including using intellectual property tools as an advantage to protect their assets. Wesley can be contact by email or by phone at 843-212-3188.

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