Copyrights

Copyright can protect any "original work of authorship." This includes just about anything created by humans and placed on some type of tangible media. The media can be paper (e.g., advertising, instructions, training manuals, drawings) or may be something that requires a machine to be seen or used (videotapes, computer diskettes, computer chips). The work may be purely aesthetic or functional.

To qualify for copyright protection, the work must be "original." This means that a person used his or her creative or organizational skills to create the work. However, the amount of originality required for protection by copyright is relatively small. For example, textual descriptions of factual information usually qualify for copyright protection even though the "information" is not protectable and no unusual writing skill is involved.

Copyright protection exists automatically from the moment the work is fixed on some type of tangible media. However, in the U.S., the work must be registered with the Copyright Office, http://lcweb.loc.gov/copyright, before a lawsuit may be brought against an infringer. Registration is also a prerequisite to the collection of some types of damages for infringement.

Until a few years ago, if a work was published without a copyright notice, all copyright protection was waived. This is no longer true for newly published works. It is still desirable to display a copyright notice because it will make it easier to pursue infringers. When a work is published it should have a copyright notice that includes the word "Copyright," or the copyright symbol "©," the name of the copyright owner, and the year of first publication.

Copyrighted works created by an employee in the course of his or her job are automatically owned by their employer. However, copyright rights owned by others are not readily transferred unless certain legal formalities are met. When outside vendors or consultants are used to create copyrighted works, care must be exercised to be sure the commissioning party owns the copyright. To achieve ownership, the party who will own the copyright must include in a written contract certain specific, detailed contractual provisions in a form required by law. Failure to meet these strict requirements may result in the rights remaining with the vendor or consultant.

Most foreign countries provide copyright protection and in most cases no additional steps need be taken to protect written materials. However, the law can be different in each country for some types of works such as computer software. For these reasons if foreign rights in a particular country are important, it is always desirable to check the legal requirements.

A copyright owner has certain exclusive rights. These include the rights to reproduce, distribute, display and perform the work. The copyright owner also has the exclusive right to prepare "derivative works," which are works that are based on the original, but which include some different or additional material. A violation of any of the copyright owner's rights constitutes copyright infringement. Copyright infringement most commonly occurs whenever a copyrighted item is "copied" in whole or in part. Copyright infringement may occur even when the infringing copy is not identical, but only "substantially similar" to the original. When a substantial portion of a copyrighted work is used in another work, it also usually infringes as an unauthorized "derivative work."

Copyright protection is limited to protecting "expression" and does not protect the "ideas" expressed in the work. However, distinguishing protected "expression" from public domain "ideas" can be difficult, particularly with works such as computer programs. Courts often struggle with these issues and the legal rules are complex. To establish liability for copyright infringement, the infringing work must not only be substantially similar in some significant portion to the original work, but the accused infringer must have obtained access to the original work. Without access to the original, there is no infringement, even if the two works happen to have portions that are identical.

The elements of "access" and "substantial similarity" must be present for copyright infringement of works of any type. For example, many photographers take photographs of the same scene, and all their copyrighted photographs are virtually identical. However, there is no infringement because the photographers did not have access to the others' photographs, and did not copy from one another.

Copyright protection is very different from patent protection with respect to infringement. Copyright infringement requires "access," and therefore some knowledge of the work that is infringed. However, patent infringement occurs whenever someone makes, uses, sells or offers to sell a patented invention, regardless of whether they are aware of the patent or the patent owner's products.

Copyright protection is also limited in that it does not protect features that are included primarily due to functional considerations. For example, a series of screens in a user interface for a computer program may contain textual material necessary to guide the user through a series of logical steps. Another program may have a similar interface without infringing, because the screens are primarily functional. However, screens in an interface that include unique graphics and other material not dictated by functional considerations probably cannot be used by a competitor without an infringement problem. Deciding to what extent the "look and feel" of an interface of a computer program is protected by copyright is often difficult, and legal advice on these issues should always be obtained.

Copyright may also protect some features of useful items that are "ornamental" and not dictated by functional considerations. Some ornamental features may also serve the function of identifying the origin of the item. Such features may be registered as a trademark and/or may serve as "trade dress" which is protectable in a manner similar to an unregistered trademark. Therefore, the appearance of others' products or literature should not be copied or simulated without first obtaining legal advice.

Fair Use

The broadest exception to a copyright owner's exclusive rights is the "doctrine of fair use." A "fair use" is something that is permitted by law, that would otherwise constitute an infringement. Unfortunately, deciding whether a use is a "fair use" is difficult because any decision requires weighing a number of factors. These factors include:

the purpose and character of the use,
the nature of the work,
the amount of the work involved,
the effect of the activity on the market for the original work, and
whether the original work is published or unpublished.

The character of the use is often the most important factor in a "fair use" analysis. If the character of the use is related to a profit making activity, as opposed to a personal non-profit activity, this suggests that the use is not a fair use. Simply because a use is related to a profit making activity does not automatically rule out the right to copy or use a work as a fair use. The other factors must always be considered. For example, if a work is a collection of facts (like a database or encyclopedia) as opposed to a fictional work, the doctrine grants broader use without infringement. Likewise, if the amount of copyrighted material used is small and/or does not adversely impact the copyright owner's commercial position, this will weigh in favor of fair use. Uses of unpublished works are less likely to be "fair uses" than published works. This is because the law gives a copyright owner the right to control when their work is first published. All of the "fair use" factors must be considered and weighed in deciding if an activity is exempt from infringement liability. As this involves making a legal judgment, questions about fair use should always be referred to an attorney experienced in copyright law.

The penalties for copyright infringement can be severe. The law provides the copyright owner with the right to obtain actual damages or "statutory damages." Statutory damages are those set by law and can range from $500 to $100,000 per infringement, plus attorney fees. As a result, damage awards can be much higher than the actual loss to the copyright owner. Also, in some circumstances copyright infringement may be a criminal offense punishable by fine or imprisonment. For these reasons it is important to work with experienced legal counsel when dealing with copyright issues.

Many businesses only think about protecting their patents, trademarks, copyrights or trade secrets after they have encountered a problem. It is much less costly to have a plan for protection of your valuable "intellectual property" so that problems can be avoided.

One approach to avoiding problems is to have an "intellectual property audit" conducted. An intellectual property audit involves having an attorney experienced in intellectual property review the business activities and the protection you currently have. Such reviews usually uncover areas in which protection can be improved at a very low cost. Just like an annual physical checkup by a doctor, an annual review of intellectual property protection can avoid serious problems later.