As mentioned in Part 1 with the ever-changing world of technology, business owners need to be aware of the different areas of intellectual property law (IP). This blog is Part II of this topic covering Copyright duration, notice, registration, and works made for hire with a brief discussion on the importance of licensing to assist business owners in making significant business decisions to protect their assets under IP. As stated in Part I, copyright IP protection is provided by the laws of the United States (title 17, U.S. Code).
HOW LONG IS MY COPYRIGHT PROTECTED?
The duration of copyright protection differs depending on when the work was created and/or published. For example, works created on or after January 1, 1978 are protected for a term of the life of the author plus 70 years. If it is a corporate author, then the protection is for the shorter of 95 years from publication or 120 years from creation. Works created and published prior to 1978 may be protected for different lengths of time. For a detailed reference regarding duration of the protections you can look to the US Copyright Office’s website.
DO I HAVE TO ACTUALLY USE THE ©?
The use of a copyright notice is no longer required under U.S. law; however, it is beneficial because prior law had such a requirement and such use is still relevant to the copyright status of older works. Notice was required under the 1976 Copyright Act and this requirement was eliminated when the United States adhered to the Berne Convention (effective March 1, 1989). Also, use of the copyright notice is important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy and the defendant in a copyright infringement suit had access to such notice, then “no weight shall be given to such defendant’s defense based on innocent infringement in mitigation of actual or statutory damages”. Innocent infringement occurs when the infringer did not realize that the work was protected.
The copyright owner is responsible for use of the notice and it does not require advance permission from, or registration with, the Copyright Office. Form of the notice needs to include the following three elements: (1) The symbol © (letter c in a circle), or the word “Copyright” or the abbreviation “Copr”; and (2) The year of first publication or the work; and (3) The name of the owner of the copyright in the work. The position of the Notice should be affixed to copies in such a way as to “give reasonable notice of the claim of copyright.” An example of a Copyright Notice for a Waltz, Palmer & Dawson, LLC work of authorship first published in 2018 would be as follows: “© 2018 Waltz, Palmer & Dawson, LLC”
DO I HAVE TO REGISTER MY COPYRIGHT? CAN MY WORK BE PROTECTED WITH COPYRIGHT REGISTRATION?
While copyright registration (formal claim of copyright filed with the US Copyright Office) is not necessary, it also provides benefits for the owner to consider such as: (i) establishing a public record of the copyright claim; (ii) it is necessary for US works of origin before an infringement suit may be filed in court; (iii) prima facie evidence in court of the validity of the copyright; (iv) if made within 3 months after publication or prior to an infringement, attorneys’ fees and statutory damages may be awarded to the owner in court (otherwise, only actual damages may be awarded); (v) establishes a public record of the copyright claim and then allows for recording of transfers of ownership; and (vi) allows the copyright to be used to prevent the importation of infringing copies.
Business owners should also be aware of the doctrine of works made for hire in which the “owner/author” of the work is no longer the original creator of the work but the “owner/author” is considered to be the entity which hired the original creator of the work (such as with an employee/employer situation). The work made for hire doctrine under the Copyright Act is limited to two scenarios: (i) a work prepared by an employee within the scope of employment; and (ii) a work specifically commissioned for use. In a situation in which an individual is an independent contractor and the work is commissioned, it is important for the parties to consider using a written agreement to ensure that the work made for hire concept is properly stated to represent the actual intent of the parties.
This leads to one of the most important benefits of copyright ownership which is the right of the owner to transfer some or all of its rights to third parties. Such transfers can be made through a license agreement which needs to be in writing to ensure all of the necessary details regarding the transfer are specified and agreed to between the parties. Ask about access to the recording of the Navigant “Licensing 101: Intellectual Property (IP)/ technology Basics” webinar being offered to business owners.
IS MY COPYRIGHT GOOD IN OTHER COUNTRIES?
The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country. For a listing of countries and the nature of their copyright relations with the United States, see Circular 38a, International Copyright Relations of the United States.
Should you have any questions about copyright law and other intellectual property protections, including licensing, please or any other laws that may affect your business, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.
This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.
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