PART I: Asset Protection for your Key Business Asset
With the ever-changing world of technology, business owners need to be aware of the different areas of intellectual property law (IP). This is crucial in making the right business decisions and implementing processes to protect your existing and/or future IP rights. Also, having the proper protections and practices in place can avoid both the inadvertent loss of your valuable assets and putting your business at risk of the unauthorized use of another party’s IP. This blog is the first in a series on copyright law providing an overview for a business owner to gain a basic understanding of this area of IP to assist in making such significant business decisions.
What is a Copyright?
Copyright is a form of IP protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including types of intellectual works along with literary, dramatic, musical, and artistic works. The general premise of copyright is about balancing rights, the rights of creators/authors/owners with the rights of the general public to be able to use the work without seeking permission or paying royalties. Copyright law actually originated with Article 1, Section 8, of the US Constitution, which “gave Congress the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Copyright Office of the Library of Congress is responsible for overseeing the administrative functions of copyright law.
The Copyright Office is responsible for administering a complex and dynamic set of laws, which include registration, the recordation of title and licenses, a number of statutory licensing provisions, and other aspects of the 1976 Copyright Act and the 1998 Digital Millennium Copyright Act. By statute, the Register of Copyrights is the principal advisor to Congress on national and international copyright matters, testifying upon request and providing ongoing leadership and impartial expertise on copyright law and policy. According to the Copyright Office’s website, as of early 2017, the Copyright Office has approximately 400 employees, the majority of whom examine and register hundreds of thousands of copyright claims in books, journals, music, movies, sound recordings, software, photographs, and other works of original authorship each year. In fiscal year 2016, the Office processed over 468,000 claims for registration, issued over 414,000 registrations, received 91percent of claims via our online application system, and collected $30 million in fees from registration.
What protection does a copyright give my business assets?
Under copyright, authors (also referred to as owners or creators) are allowed the right to control the use of their work subject to certain exceptions that the law permits. If the use of the work by others besides the authors exceeds the permitted exceptions, then this infringement on the author’s copyright can result in civil liability (money damages) and/or criminal liability (even going to prison). The protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act gives the owner of the copyright the exclusive right to do or authorize others to do the following: reproduce, distribute copies or phonorecords, perform the work publicly (including sound recordings by means of digital audio transmission), create derivative works, and display the copyrighted work publicly. The copyright in the work immediately becomes the property of the author and with works made for hire, the employer and not the employee, is considered to be the author. No publication or registration is required to secure copyright. Copyright is secured automatically when the work is created and fixed in a tangible medium or expression (fixed in a copy or phonorecord for the first time). The following are categories of works which are copyrightable: (i) musical, literary, and dramatic works; (ii) choreographic works and pantomimes; (iii) sound recordings; (iv) motion pictures and other AV works; (v) pictorial, graphic and sculptural works; (vi) compilations of works and derivative works; (vii) computer programs; and (viii) architectural works.
What Assets can have copyright protection?
A work must contain at least some minimum amount of authorship in the form of original expression in order to be protected by copyright. Names, titles, and simple short phrases are examples of items that are too minimal to meet the requirements for copyright protection; however, brand names, slogans and phrases used in connection with a business, product, or services may be protected under trademark law (a different area of IP). Ideas, principles, processes, discoveries and actual devices are also excluded from copyright protection as these specific exclusions are the subject matter of patent law (another area of IP) while the expression of the ideas is governed by copyright law. As mentioned above, the copyright laws do allow for exceptions for the use of a work without requesting permission from the owner and potentially paying fees (major exceptions are: fair use, face to face, or virtual instruction).
The fair use exception is the most commonly used as it covers a broad range of allowances with flexibility based on the public interest protected by the use. The fair use exception has developed over the years as courts continue to try to balance the rights of the copyright owners with the public’s interest in allowing copying in certain limited situations for important goals of society such as education, teaching, research, news reporting, and evaluation, including criticism of the work. (See: https://www.copyright.gov/circs/circ01.pdf, Copy Right Basics by The United States Copyright Office; https://www.axley.com/publication_article/a-very-brief-summary-of-copyright-law/; https://www.lib.purdue.edu/uco/CopyrightBasics, sites viewed in February, 2017).
How do I learn more about Copyrights?
Much information is provided on the Copyright office’s website. Including an easy to use listing of Frequently Asked Questions. But Copyright law is a complex area and in the event that you ever have concerns or come across an issue regarding copyright or any IP decisions relating to your business, it is advisable to seek legal advice from an attorney with experience on the matter of IP. A key factor is to protect your right and/or avoid the potential risk prior to a problem or loss arising.
Should you have any questions about copyright law 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, Collaborative Divorce & Mediation.
This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.
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