Copyrights for Small Business
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Stephen Obenski - Copyright Law for Businesses
Welcome to another edition of the Legal River podcast, a weekly look at the laws and legal
issues facing small to medium size businesses.
Hi, my name is Steve Obenski and I'm an attorney in Washington, DC. Copyright law is important
to just about every business, but it is frequently misunderstood. So in this video, I want to
discuss: - what is a copyright and how is it created,
- some simple steps that you can take to help protect your business copyrights, and
- most importantly, how to help ensure that your business actually owns the copyrights
in materials that are created for you by your employees and your independent contractors.
Let's start with what a copyright protects. A copyright protects the author of a work
against unauthorized copying, and also gives the author the sole right to create derivative
works that are based upon that original. To create a copyright in the US, there are actually
only two simple requirements. (1) The first is that it be an original work of authorship.
And the second is that it be fixed in a tangible medium of expression. The first requirement,
originality, simply means that it took some creative effort to produce it. So, for example
the content on your company's website, your logos, if your company produces software or
reports, all of those things can be the subject of copyright. (Copyright law, by the way,
does not protect brand names or slogans. In some cases those can be protected by trademark
law.) (2) That second requirement was that copyright be “fixed in a tangible medium
of expression”. And all this really means is that it be written down, recorded, posted
on your website, or something like that.
There are some additional things you can do to help protect your copyrights. The simplest
one is providing a copyright notice and registering your copyright. These are actually not required,
but doing them removes any doubt that you intended to protect your legal rights in the
work. And if you do go to court later, having done these can actually greatly increase the
amount of money damages that you can receive from someone who has infringed your copyright.
The copyright notice is very simple. It's seen everywhere. You simply put the word “copyright,”
or the copyright symbol, which is a C with a circle around it. You also include the name
of the author, which in the case of most businesses is going to be the company name. (Make sure
that you do correctly spell out the full name and punctuation.) And in addition you want
to have year of first publication. A copyright registration takes only a little bit more
effort, but it's a relatively simple matter of filing some forms online. You can find
those forms on copyright.gov.
Now, how do you make sure that your business actually owns the copyrights in materials
that are created for you by your employees and independent contractors? For these types
of transactions, a written contract is important for several reasons. Under federal law, ownership
of a copyright can only be transferred with a written contract. If you don't have a written
contract, you and the contractor are probably going to be considered joint owners of any
work that you both contribute to. This could be a problem for a couple of reasons. One
problem is that the joint owner is generally going to be free to copy and use the work
for whatever purposes they wish. And the second problem is that the joint owner has the right
to approve or disapprove any future sale of that work. So, especially if you're in a business
that where you may be selling some of the materials or where you plan to sell the entire
business in the future, you'll want to have a written agreement that says that any important
copyrights that you use in your business are actually owned by you, and only by you.
Even if you intend that your contractor is going to keep some rights in the work, you'll
probably want to have a written agreement that makes it clear what they're allowed to
do and what you're allowed to do with the work. For example, if your company hires a
web designer to create the logo and website for your company, you'll probably want to
own the copyright of the logo so that your designer can't go off and use the same logo
for somebody else. But you may not mind so much if your web designer uses just the templates
from the web page, maybe a background color or something like that. You may not mind if
the designer reuses those elements for someone else. In this situation, you will want to
have a written agreement to make it clear what exactly you intended when you entered
into that agreement.
You may read that copyright law has a special provision called “works made for hire.”
What this means is that if work is specially commissioned for your company, then it becomes
the property of your company. But even this provision still requires that there be a written
agreement specifying that both parties intended the work to be a “work made for hire.”
And for that reason you unfortunately still can't avoid the requirement of having a written
agreement.
Just to complicate matters further, in some states and especially in California, the way
you construct this agreement can actually have important tax and employment law consequences.
So you will want to consult an attorney to make sure you're using a form that is proper
for your needs.
There is a bit of good news. Works made by an employee within the “scope of employment”,
are generally considered owned by the company without a need to do anything further. But,
as you can imagine, in many industries it can be unclear what exactly the “scope of
employment” is. This can obviously be the case if you have employees who are working
side jobs or doing other things outside of the office. In that case you, may want to
include a copyright assignment as part of your employment contract or as part of an
employee handbook. Either way, you will have something in writing that makes it clear what
the company intends to be the property of the company versus something that the employee
would be allowed to take with them somewhere else.
This concludes a brief overview of copyright law for businesses. If you have any questions,
please feel free to give me a call at Steve@Obenski.com or visit my web site at obenski.com for more
information. Just a reminder that this video is intended to be general information and
should not be construed as legal advice. And finally if you have any questions about the
podcast, feel free to email Podcast@LegalRiver.com. Thank you.
Thanks for listening to this edition of the Legal River podcast. If you have a business
law question you would like to see answered in a podcast, please email us at Podcast@LegalRiver.com.
To reiterate, all views expressed in this presentation are intended only as a general
discussion of the issues and should not be regarded as legal advice. For additional details
or advice about a specific situation, please consult legal counsel directly.
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