Intellectual Property Primer Series Part 1: Copyright

Welcome back to the First Venture Legal blog! Over the next couple of weeks I’ll be writing a brief series overviewing the four types of intellectual property: copyright, trademarks, patents, and trade secrets. Intellectual property is a highly important, if somewhat overlooked, area of the law for entrepreneurs and startups; it is my hope that this series will give entrepreneurs a better understanding of this area of the law. Here in Part One I’ll start with copyright.

Before I begin, though, in the way of disclaimer, by writing this article series I do not intend to convey that I have specialized training in intellectual property law or am a patent attorney. I merely intend to give a very general, brief overview of the field; although I can answer general questions about intellectual property law, you should retain a patent attorney if you have questions about intellectual property law specific to your case or need to secure a trademark or patent.

Copyright is available to any creative work of authorship; despite the use of the term “authorship”, copyright can be applied to a wide variety of works, including books, poems, news articles, paintings, sculptures, photographs, blueprints, songs, and even computer programs. Copyright is gained as soon as the work is fixed into a tangible medium, such as a novel being written on paper, a painting being painted on canvas, a sculpture being sculpted from marble, a song being recorded, or a computer program being coded.

In order to obtain a copyright, the work must meet a “minimum standard of creativity”. The standard is easily met compared to other IP rights; splashing paint against a canvas to create a work of art would likely meet the minimum standard of creativity. However, presenting factual information in a standard or logical way is not protected by copyright — for example, organizing phone numbers in a phone book by users’ last name wouldn’t meet the minimum standard of creativity; however, presenting that information in a novel way, such as by organizing the numbers by users’ favorite cuisine, might meet the minimum standard of creativity. Even the effort put into writing a very factual entry in an encyclopedia probably meets the minimum standard of creativity; however, where a work involves both creativity and use of facts, protection may be limited compared to a purely creative work, as explained below.

Copyright gives the holder the exclusive right to reproduce the copyrighted work, produce derivative works based on the copyrighted work, and distribute and perform/display the work to the public. For example, because of J.K. Rowling’s copyright on the Harry Potter series, without her permission another person cannot reprint the text of the novels and sell them, cannot give public readings of the novels, or otherwise publicly display the work. No one else can write novels about additional adventures of Harry Potter, or redo the movies, or attempt a “gritty reboot” of the franchise. A copyright holder also has control over how the work is disseminated; for example, J.K. Rowling can authorize a stage production of the Harry Potter series with the condition that the ending of the story may not be changed.

It is important to distinguish creative expression, which copyright protects, and ideas, facts, and processes, which are not protected by copyright. For example, J.K. Rowling’s copyright for the Harry Potter series doesn’t cover works about wizards, or even works about boy wizards. But it may likely prohibit works about a magical orphaned boy who goes to a school for wizards and has to battle an evil warlock; that strays from the mere idea of wizards into the specific creative expression of the Harry Potter series. The line between ideas and creative expression varies from case to case, so the better rule of thumb is simply not to consciously copy anything from a work (and be very careful if you use a work for “inspiration”).

Pure facts are also not protected by copyright; however, copying the word-for-word presentation of facts is a violation of copyright. For example, it would be a violation of my copyright to reproduce this article or sections of it word for word, but another person may use the pure facts about copyright law I discuss here elsewhere.

Processes are also not covered by copyright (but by patents instead). For example, although it is possible to copyright a computer program, the copyright only protects the code of the program, not the process of the program. If you write a computer program that does a task, another person does not violate your copyright by creating a program that does that exact same task if he or she writes new code to accomplish the task.

Although a copyright is obtained as soon as the work is fixed in tangible form, it is also possible to add notice of copyright and register the work with the Copyright Office pursuant to the Copyright Act. A copyright notice is accomplished simply by placing the copyright symbol, ©, or the word “Copyright” or an abbreviation, the year the work was first published, and the name of the copyright holder. Advantages to adding the notice include invalidating the “innocent infringement” defense if the defendant had access to a copy of the work with the copyright notice. In addition to adding notice, it is also possible to register the copyrighted work with the Copyright Office, which involves filling out an application form, paying the deposit fee, and depositing copies of the work with both the Copyright Office as well as the Library of Congress. By registering the work, copyright holders are permitted to bring infringement claims for works first published in the U.S.; copyright holders are also entitled to statutory damages and legal fees.

No matter whether or not a copyright holder adds notice or registers his or her work, the copyright period extends a long time: for the life of the author plus 70 years; if the work is made for hire, or is made anonymously or pseudonymously, the term is 120 years from creation or 95 years from publication, whichever expires first. Copyright is personal property, and may be freely licensed or sold. It is also possible to abandon a copyright and allow the work to pass into the public domain, but requires the copyright holder to intend to abandon the copyright in addition to some sort of overt act that demonstrates that intent. It is also important to note that ownership of a copyrighted work is distinguished from ownership of the copyright itself; a painter can sell his or her painting, but retains the copyright to that painting. Similarly, a painter can sell the copyright to his or her painting, but the buyer cannot reproduce the work until he or she actually obtains a copy of it to make reproductions.

There are limitations and defenses to copyright. The most prevalent limitation on copyright is the Fair Use doctrine. Under the doctrine, use of copyrighted work may be permitted if it passes a case-specific, four-factor analysis: whether the use falls under one of the “favored” uses — criticism, comment, news reporting, education, scholarship, or research — or was for a commercial purposes; the nature of the copyrighted work; the amount of the work used; and the use’s effect on the market or value of the work. Another limitation on copyright is the First Sale doctrine; under the doctrine, the lawful purchaser of a copy of a work may generally may display or distribute that particular copy of the work — if an individual purchases a painting, he or she may display that painting or sell or donate it, but may not use the painting to make further copies to display or sell. The First Sale doctrine is itself limited when it comes to audio recording or computer programs, which are prohibited from being lent, leased, or rented for commercial advantage. Other limitations on copyright include copying computer programs for the purpose of the program or archival purposes, exceptions and limitations on liability for libraries, archives, and online service providers, exceptions to the display limitation for educational and nonprofit organizations, and limited exceptions for commercial entities who display copyrighted work on a consumer device, such as a radio.

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