“Copyrights are at the heart of most SMEs and, quite simply, are the easiest intellectual property rights to acquire solidly across the spectrum of intellectual property rights.”
Discussions of intellectual property strategies for small and medium-sized enterprises (SMEs) often focus primarily on patents and trademarks. But the benefits of copyright for a small business should not be underestimated.
Copyright protects the expression of ideas in tangible works. The subject matter of copyright is very broad – all “original works of the author, fixed on a tangible medium” are immediately protected against creation. The US Copyright Office lists these categories as subject to copyright protection: literary works, musical works, performing arts, visual arts, other digital content (including computer software code), motion pictures, photographs, recordings sound and architectural works. 17 USC Section 102.
Public exposure to copyright takes place primarily in the form of written works, songs and visual arts. The copyright symbol (©) is everywhere, but be aware that adding this symbol to your works does not confer the benefits of officially filing your copyright (called registration) with the US Copyright Office. However, the use of the © symbol is also not legally required to claim copyright, as copyright is automatic from the fixation (unless the author otherwise consecrates the work in the public domain). The rights of copyright owners generally provide copy protection and promote the commercialization of the work, such as distribution, reproduction, display and performance, and allow others to do the same. .
Copyright is at the heart of most SMEs
Copyrights cover works written or otherwise “fixed”, or captured, such as a photograph. Copyright protection subsists immediately from that moment of fixation. For the entrepreneur and the SME, copyright is part of every business. Many businesses have important copyright cores, such as content creation, design, fashion, or entertainment businesses. All of these companies care about expression, just as copyrighted source code is the heart of a software company.
As long as the work is (i) original (for example, not copied, even if it is not unique); and (ii) fixed in a tangible medium, then the copyright is attached from the time of fixation, and the author can control the commercial exploitation of that work for the term of the copyright. long-term. 17 USC Section 102. Businesses should consider all works that contribute to business as candidates for express copyright recognition and protection.
Although copyright exists automatically, the US Copyright Office offers registration, and business owners should use this option as a core intellectual property asset for their businesses. However, even without registration, the authors still hold copyright. Every American is granted a copyright by virtue of his works; every email and photograph is protected by copyright, whether or not it is recorded.
Copyright registration offers authors the opportunity to gain considerable advantage in copyright litigation. Timely registered copyrights offer the possibility of legal damages, as well as the possibility of attorney fees in copyright disputes. 17 USC Section 412. These statutory benefits are the keystone of the value of copyright in the intellectual property spectrum.
What is timely registration?
The optimum time for the copyright owner is at or before publication. After posting, which is under the control of the owner, there is a 90-day grace period after posting to retain all benefits under the law. Accordingly, copyright owners should:
- Complete copyright registration in a timely manner by filing with the US Copyright Office.
- Copyright registration file at or before publication of a work.
Quite simply, copyrights are the easiest intellectual property rights to securely acquire across the spectrum of intellectual property rights.
Legal damages are part of the law for registered copyright owners. Statutory damages are pecuniary compensation which can be chosen by the copyright owner without proving the actual damages resulting from the infringement; they have a deterrent effect on the counterfeiting of works when the act of counterfeiting itself causes little marginal pecuniary damage. In the context of statutory damages, damages are set as a basis for redress based on a quantity of infringing acts. Where the recording takes place before the act of copyright infringement, statutory damages of at least $ 750 to $ 30,000 for unintentional infringement and up to $ 150,000 for willful infringement are available for every work violated. 17 USC Section 504. Statutory damages are a very important option for the copyright owner because proof of actual damages in an infringement action is expensive and sometimes difficult. Instead, once the infringement is proven, the copyright owner has the option of not presenting any further evidence regarding monetary damages. Predetermined damages and less evidence means less ammo for the litigation game.
Copyright registration sets up the potential for reimbursement of attorney fees in a successful copyright infringement litigation. When a dispute needs to be pursued (with a suggestion to prosecute only when it is a last resort as a requirement for your business), you can recover your lawyers’ fees. The impact of an increased likelihood of attorney fees on litigation strategy cannot be overstated – because without timely registration, the copyright owner has no right to claim legal fees. lawyer, even if the offense is willful. The risk of fees can also be used to settle the litigation before the trial, thus changing the dynamics of the litigation process in your favor – even a tactic for the falsely accused defendant.
When these statutory benefits are not available due to a failure to file on time, only an allowance for actual damages and benefits is available, and attorney fees are not available for copyright claims. . This may force the copyright owner to have few practical means to enforce even moderate commercial value works – without timely registration (and therefore without the possibility of attorney fees), in practice. , only a very lucrative counterfeit can be applied.
A good investment
There is another basis for which registered copyrights are such a valuable asset: cost. The copyright benefits presented above are achievable at a de minimis Cost. In fact, the investment in spending hours with a lawyer considering copyright is proportionately higher than the cost range for a copyright filing, whether filing it yourself – even for an amount of $ 45 (or $ 65 for a copyright owned by a company) or on an average lump sum. base less than $ 1,000 for regular filing with lawyer. Copyrights have no maintenance costs. When we compare copyrights to their best-known companion in the IP spectrum – patents – copyrights are stronger from a cost perspective. While patents can add thousands to the initial cost of initially obtaining the right through maintenance fees over its 20-year lifespan, the one-time cost for the lifetime of the author’s copyright plus 70 years makes it an exceptional investment. and active IP.
The best reason to rush to the US Copyright Office, however, is probably not what you get, but what you miss out on by not taking advantage of this asset.
At a broader societal level as well, copyright embodies the fundamental human activity of expressing ourselves. Expression allows a function of notifying the company of your personal expression, which you are entitled to own, as opposed to general ideas, free for everyone to use, with its own expression. In this way, copyright reflects the balance of intellectual property generally between the protection of an author’s work and ideas available to the public.
Copyright policy also respects its basis in the limited-term clause of the US Constitution – the arts and sciences are advanced by the limited monopoly provision. Society has access to the works because they are protected, then society benefits even more from the works once the monopoly is extinguished. Indeed, on January 1, 2024, the copyright in Walt Disney’s masterpiece “Steamboat Wille”, and with it the beloved character Mickey Mouse, will enter the public domain – free for use. public (as long as the use is not confusing in a trademark). We are sure to expect a lot of author’s work on this.
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Cheryl Milone Cowles is the Head of Intellectual Property at IPwe. She is an inventor, founder of SMEs and lawyer specializing in intellectual property. She is honored to provide information on US copyright registration and intellectual property strategies for high-tech SMEs in her forthcoming book, “Intellectual Property Protect: Your Personal Playbook For Cost-Efficient IP Strategies ”. (2021).
For more information or to contact Cheryl, please visit IPwe.
J. Christopher Lynch is a partner at the intellectual property law firm Lee & Hayes PC with his practice in intellectual property licensing and litigation. Chris is also an adjunct professor teaching intellectual property law courses at Gonzaga University School of Law and University of Idaho College of Law. Chris holds his undergraduate engineering and law degrees from the University of Washington.