THREE STEPS TO BASIC
By Evan Smith
Copyright law is one component of a
complete program for protecting intellectual property. By following simple guidelines, you
can preserve important legal rights in software, online content, written material, website
designs, graphic artwork, and other original works.
Copyright prevents others from using your
unique expression of an idea, but doesn't protect the idea itself. For example, if your
website offers a new type of online service, copyrighting the website will not prevent
others from offering that service. However, it will protect the appearance and layout of
your site so that nobody can create a direct copy. Similarly, copyrights will prevent
direct copying of original Java and Perl scripts, and other custom software that you
develop, but will not prevent others from writing their own software that performs the
same functions. It may be possible to patent functional features of your website and
Three key steps to protecting copyrights
are: (1) Ownership (2) Notice and (3) Registration.
If you're not careful, "your"
copyrights may end up belonging to someone else. Just because you paid for work doesn't
mean the copyright belongs to you. If a programmer, artist, or writer is anything other
than a full-time employee working within her job description, the legal presumption is
that the creator is the copyright owner.
To avoid unintended loss of rights to
employees or contractors, employment and consulting contracts should specify assignment to
your company of copyrights in all materials to be prepared, and in appropriate cases
should state that the material to be prepared is a "work for hire."
A valid copyright notice is important in
preserving rights, and should be placed on every copy of the material. A complete notice
includes four elements:
1. The word "Copyright" and/or ©
(the "circle c" symbol);
2. The first year of publication;
3. The legal name of the true copyright owner, which may be a person or a business entity;
4. The words "All Rights Reserved." This element is not required in the United
States, but is needed to preserve rights in certain Central and South American nations.
The notice preserves some of your legal
rights, but copyrights should be registered with the Copyright Office to obtain enhanced
protection. If your copyright was not promptly registered, you are limited to actual
damages for the copying. It is often hard to prove specific dollar losses resulting from
(for example) copying elements of your website. It may cost more than it is worth to
enforce a copyright that was not promptly registered.
Registration provides both additional
remedies and procedural advantages. If a copyright was promptly registered, you can obtain
"statutory damages" for infringement without quantifying harm to your business,
and the infringer may also have to pay your attorneys. Statutory damages are established
by the judge or jury, normally at a level between $500 and $20,000, although up to
$100,000 may be awarded if the copying was willful. Prompt registration also provides a
public record of copyright ownership and can be used in court as evidence (1) of the
validity of the copyright and (2) of the facts stated in the certificate. To protect your
right to seek statutory damages, register copyrights within three months of the first
Registration is particularly important
where (1) the likelihood of copying, or (2) the harm resulting from copying, are
significant. Materials available to the public (like software you distribute, or anything
posted on the web) are easily copied. If you have a valuable product and copying would
harm your business, your copyright in that work should be registered even if it is not
Many entrepreneurs register their own
copyrights. The government fee for registering a copyright is only $20, and complete
instructions and forms for registration can be downloaded in Adobe Acrobat format from
the Copyright Office website. Websites and
online content can be registered using Form TX; submit both HTML code
and printed output versions for more complete protection. Registration takes three to four
months, but if the form and fees were in order on the date received, the registration will
be given that date.
Copyright © 1997 Greenberg
Traurig - All rights reserved. Used with permission.
Please read the IP
Resource Center Ground Rules.