Copyright FAQ

Frequently-Asked Questions Regarding Copyrights

These frequently-asked questions (FAQ's) are intended to provide business owners, managers and in-house counsel with general information about the legal aspects of their business, so they may better understand and work with an intellectual property attorney.

These FAQ's are not legal advice. You should consult an attorney for legal advice if you have questions about your particular situation.

How can we be sure that our work/product/software program/website/song/lyrics/art is protected by copyright law?

A copyright registration is the first and most important step. Registering copyrights is no longer required, but it is usually a very good idea. Although copyrights are theoretically fully protected under U.S. law as soon as fixed in a "tangible form," it can be very difficult to enforce your rights without a registration. A copyright registration makes it much easier to prove that you created the work and when you created it. A registration also allows you to obtain statutory damages and attorneys fees for infringement. Without a registration, you may be entitled minimal damages and you will have to pay your own attorneys' fees and costs to stop use of the work.

Recordkeeping is a second step. You will want to retain copies of your published works, along with information about how and when they were distributed or published. You should also keep evidence of the steps and timeframe of your development or creation process to help establish that you are actually the author of your work.

We hired an independent contractor to create part of our company's software program. We don't have a written agreement with him, but I am sure that my company owns all rights to the software program.

Probably not. This is the most common mistake that businesses make regarding copyright law. If your company hires an independent contractor, copyright works created by the independent contractor are generally owned by the independent contractor himself, not your company. This is probably true even if you commissioned and paid for the work to be created.

To own the work, you need a written agreement transferring ownership of the work to your company. An oral promise or agreement is not sufficient.

Without a written agreement, the designer who created your logo may be free to use the same logo with someone else. A software vendor may be free to sell copies of the software component it created for your company to your competitors. To avoid this kind of problem, it is best to have your independent contractors sign at Copyright Assignment, Independent Contractor Agreement, or similar assignment of rights at the time you hire them.

What does copyright law protect exactly?

Copyright law protects "original works of authorship," which can be almost anything that you create that involves a reasonable degree of creativity and is fixed in a tangible form (including an electronic format). Once work is protected by copyright, you can control the copying, distribution, public performance and public display of the work. You also have control over the creation of any revised or adapted versions of the work.

Absent a written agreement to the contrary, a person creating the work is generally considered the "author." If one of your company's employees creates the work in the course of his/her employment, your company will be considered the author however.

What about ideas or techniques that may be shown in our company's copyrighted works? We provide software over the web and want to stop people using the ideas and procedures from our product in any way, shape or form, whatsoever.

The protection provided by copyright law is limited to the particular "expression" that you have created. Copyright protection does not protect the underlying ideas, techniques, processes, or procedures that you may have created. This means that people cannot copy your software code in its entirety and redistribute it, but (absent some other restriction such as confidentiality restrictions) they may be free to take notes on your ideas and procedures, express them in their own way in original code, and sell this product in whatever way they like. This is similar to the idea that when you read a book, you can't copy the book in its entirety but you can use the ideas and information that you read in the book.

To protect ideas, techniques, processes, or procedures in your work or your products, it is necessary to pursue patent protection for those items if possible. This is a separate legal process in addition to copyright registration. It is significantly more expensive, but it can be very valuable depending on the patent(s) you can obtain.

Contract law can also sometimes be very helpful. For example, you might require the licensees of your software to sign an agreement restricting their ability to reverse engineer your product, copy its processes or format, or use any confidential information contained in it.

Even if your ideas and techniques are not protectable in a cost-effective manner, many people find that the expression and implementation of their ideas and techniques is just as valuable, especially when combined with, say, personal training and support services, assertive marketing, and the continuing development and refinement of new concepts and ideas.

Should we bother filing copyright registrations for our software? Aren't they automatically protected already? We have so many copyright works that it's a major project.

Copyright registration procedures were created in the days before continuously-changing software and the internet. To achieve maximum copyright protection, it is necessary to register the original published version of a work and each and every subsequent published version. For software that undergoes frequent revisions or a website that is updated daily, this is obviously a major undertaking.

There are certain situations where it may not make sense to file copyright registrations, particularly if the work contains significant trade secret material, is very short and/or changes very frequently. For the vast majority of businesses and artists though, it does make sense to file copyright applications for at least some of their most valuable works, despite the time involved.

I collect fine art, particularly paintings and photographs. I want to digitize them and sell copies on the internet. I didn't create them, but I own the pieces now. Can't I do whatever I want with the electronic images of them?

Ownership of a copyright and ownership of an individual copy of the work are two different questions. For works created after 1978, ownership of a material object embodying the work does not give rights to the underlying copyright. This is even true for something like an original painting, where you may own the only copy. The artist or his/her heirs would still own the copyright to that work (unless he/she transferred it to you in writing) and would likely be able to stop unauthorized reproduction, distribution, and creation of derivative works.

To digitize and sell copies, you need to own the copyright to the work or have a license to granting you rights regarding digital versions.

Should we include a copyright notice with our work? Is that mandatory for copyright protection?

A copyright notice is no longer required for copyright protection. It is still a good idea to include one though, as it helps deter unauthorized copying and use. It also clears up any confusion regarding whether you have placed your work in the "public domain" or otherwise made it available for unrestricted use and copying.

There is no required form of copyright notice, but the standard form of a copyright notice is:

For artists and songwriters: I heard I can just send my copyright works to myself in the mail, never open it, and keep it with the postmark to show the date. Isn't that just as good as a copyright registration?

It's unclear where this mysterious tale about copyright protection came from, but it is not effective. Even if the postmarked envelope did provide some evidence about the date that you created the work, only a copyright registration can provide you with valuable legal rights such as the right to claim statutory damages and attorneys fees for infringement of your work.

Where can I find more information about copyright law?

The Copyright Office has a comprehensive FAQ page at www.copyright.gov/help/faq/. It also publishes a variety of well-written informational materials (called Circulars and Factsheets) at www.copyright.gov/circs/.