Copyright Creation and Ownership –

What You Need to Know

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Introduction – Copyright Creation and Ownership

Securing U.S. copyright registration for works that are integral to your business is a good business and intellectual property strategy – especially for works that give you or your business a competitive advantage. 

• Those works may include product manuals, teaching guides, jewelry, poetry, novels, artwork, photographs, movies, music, puppets and software.

Eligibility for Copyright Protection

To be eligible for copyright protection, however, a work must (1) be fixed in a tangible medium, (2) be original to the creator and (3) comprise protectable expression (i.e., something more than simply stating an idea or fact).

• Copyright law, therefore, protects your expression of a certain idea, concept and principle, but does not protect the underlying idea, concept or principle. In other words, your expression of your views or thoughts about an idea, concept or principle is what may be protected by copyrights.

The Bundle of Exclusive Rights Include the Right to:

• Distribute;
• Display;
• Copy;
• Perform; and
• Create derivative works (new works based upon an original work)

How are Copyrights Created?

Copyrights are created the moment a work is fixed in a tangible medium; a registration is not necessary. 

Alert: If the work was commissioned from a third-party vendor (i.e., individual artist or brand agency), the party claiming copyright ownership must ensure that title to the copyright was transferred from the creator of the work because under copyright law, the general rule is that the author (or creator) of the work is the owner of the copyright, unless the work is assigned or the work was commissioned as a “work made for hire.”

• If an employee created the work within the scope of employment, the employer is considered the “author” of the work and thus owns the copyright in the work.

• A “work made for hire” must meet certain written and statutory requirements; many works do not fall within the legal category of a “work made for hire.” Thus an assignment would be necessary for the transfer of title to the commissioning party.

Tip: Check your agreements with vendors to see if the works were assigned or were commissioned under agreement as a legally recognized “work made for hire.” 

Advantages of Copyright Registration

Although copyrights are created immediately upon the creation of a work fixed in a tangible medium, copyright registration still provides extremely valuable rights, some of which are:

• May entitle copyright owners to attorneys’ fees and statutory awards for third party infringements
• Provides leverage in settlement discussions for infringement
• Can add value to the company’s assets at the time of a business sale
• Provides immediate access to the courts

Company Assets, Business Transaction & Copyright Creation and Ownership

Securing copyright (as well as trademark and patent) registration is a prudent business strategy for building stronger IP rights and a more valuable business.  In some instances, failure to secure registration protection for key intellectual property assets can present serious concerns during a sale of a company or company’s business assets, and may affect purchase price, since buyers expect sellers to adequately protect their intellectual property and are not eager to buy uncertainty. 

Copyright ownership issues may include:

• Whether company has “good title” to all copyrightable materials / works
• The need for a “Catch All” provision in a business transaction agreement for “all copyright protected works”
• Co-authors — beware of co-authorship issues!
• Software – beware of open source issues with software products

Conclusion

Due to the ease at which one can secure copyright registration (simply go to www.copyright.gov and fill out the online form – if you have good title to the work), the low cost of securing registration and the Supreme Court’s recent decision that copyright registration must be made prior to gaining access to the courts, seeking copyright registration protection is an obvious business and intellectual property strategy for protecting valuable copyright-eligible works.

Music: Special thanks go out to Jelsonic and Jeremy Wray for the fabulous music contained in my podcasts titled “The Returning.”  

• Music: “The Returning”  by Jeremy Wray – Copyright Jelsonic (jelsonic.com)

• The music is licensed under creative commons attribution license available on the Free Music Archive

• The music contained in this podcast is only a portion of the original; to hear the full version click here