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Copyrights: Bigger & Better Bang for your Business Bucks

By: Ira Cohen, Esquire, Partner, Henkel & Cohen, P.A., Miami

Business owners may not fully appreciate the importance of copyrights. The purpose of this article is to offer a general overview of copyright law and how it can be relevant to most businesses.

Let us now suppose that you have $35 to spend on your business today. Where could you best spend it? For this modest sum, a business can pay the filing fee for a copyright application? In that manner, you would be making an investment that not only serves to protect yourself and/or your business, but which would literally show returns for decades to come.

As compared to either patents or trademarks, copyrights are far less expensive, consume only a fraction of the attorney time to file, and endure for a much longer period of time. As a result, you will derive a much bigger and better bang for your business bucks.

Copyright, in general, is a misunderstood and an often under-utilized form of legal protection available to executives, entrepreneurs and individuals alike. If one were to engage in a cost-benefit analysis, the scales would tip heavily in favor of applying for, and securing, a U.S. Copyright Registration. Whether the nature of your business is selling flowers from Colombia, running a luxury cruise operation on Florida's Gold Coast, composing piano concertos at the Miami Center for the Performing Arts, painting murals on buildings in historic St. Augustine or penning the next great American novel from Ernest Hemingway's favorite haunts in old Key West, you may not know it, but you really do need copyright protection. Think of it as preventative maintenance. Such protection, however, extends far beyond what we traditionally think of as the beaux arts, for it is not only the Sarasota sculptor, the Fort Lauderdale comic book illustrator, the Miami choreographer, the Pompano Beach photographer and the Palm Beach poet who need such copyright protection; it is also the Doral designer of a computer program, the Kendall creator of a video game, the Coral Gables architect of a mansion, the Homestead developer of a large real estate parcel, and a Weston company's marketing director who also can benefit from copyright protection.

Article 1, Section 8 of the U.S. Constitution provides Congress with the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Under Title 17, U.S. Code Section 102, modern day American copyright protection applies to original works of authorship which are fixed in any tangible medium of expression in the following general categories

(1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic and sculptural works; (6) motion pictures and other audio-visual works; (7) sound recordings; and (8) architectural works. Copyright protection extends to both published and unpublished works. A copyright owner generally has the exclusive right, among other things, to: reproduce the work in copies or phonorecords; prepare derivative works; distribute copies or phonorecords; perform the work publicly; and to display the work publicly (see Section 106, Title 17, U.S. Code).

In the context of most businesses, copyright protection can have a wide application. For example, if your company markets gourmet foods and related products from Spain, what would be the importance of the copyright system to you? Your Internet website should be reviewed by an attorney from an Intellectual Property Law perspective. The website should contain the necessary and/or desirable copyright notices, trademark notices, service mark notices, and admonitory text (e.g., Terms and Conditions). In addition, "snapshots" can be taken of the Internet website, the content of which can then be copyrighted.

Further, if your company uses any hard copy advertising, marketing, or promotional materials, those should be copyrighted on a regular basis. In addition, in the event that anyone in your business writes an article, an appropriate copyright notice should be placed and a copyright application should be filed prior to submission of the article for potential publication. Needless to say, if your career or vocation consists of the creation of books, plays, ballets, or sound recordings, copyright applications should always be timely filed. The same, of course, applies for professionals involved in architectural design, graphic, and related pursuits. Almost every business, however, can benefit from a better understanding, and more effective utilization, of U.S. copyright laws.

At its current $35 level (effective August 1, 2009), the electronic filing fee for a U.S. Copyright Application is one of the best bargains offered for legal protection of authorship. What do you get for this modest sum? Assuming that your application is appropriate and your work is copyrightable subject-matter, the Copyright Office will issue a Copyright Registration. Armed with such a Registration, you will have the right to file a lawsuit and seek judicial relief in Federal Court to remedy infringement, commercial theft, or other unauthorized use(s) of the fruits of your cerebrallabor.

Pursuant to the Copyright Statutes (Chapter 5 of Title 17 (Sections 501 et seq. of the U.S. Code), in cases of copyright infringement, the arsenal of available remedies includes, but is not limited to: injunctions (Section 502); impounding and disposition of infringing articles (Section 503); actual damages and additional profits of the infringer or statutory damages (Section 504); costs and attorneys' fees (in the Court's discretion) (Section 505); and seizure and forfeiture of infringing articles (Section 509). In addition, a person who willfully infringes a copyright may be subject to criminal penalties. (See Section 506 of Title 17, in conjunction with Section 2319 of Title 18, of the U.S., Code).

It is important to observe that an aggrieved party cannot procrastinate forever with respect to its copyright claims. Criminal copyright proceedings initiated by the U.S. Attorney's Office must be commenced within five years after the cause of action arises. A private litigant may not institute a civil action later than only three years after the claim accrues. (See Section 507(b), Title 17, U.S. Code.)

How does one secure a copyright? As a threshold matter, you need to advise your lawyer exactly what it is you are trying to protect, and why. Your Intellectual Property Law attorney will ask you the relevant questions and, then, advise you as to the appropriate procedures to be adhered to. The attorney can also counsel you as to the correct format and placement of the copyright notice on original works, the differing deposit requirements in connection with your particular copyright application, and can answer any other questions which you may have pertaining to the process.

While your work under the copyright laws is protected as soon as it is created and fixed in a tangible form, and despite the fact that registration is voluntary, the general requirement is that a person must hold a valid Copyright Registration to bring a lawsuit for infringement of a work. The Registration serves as a public record and notice of your copyright claim. As was mentioned above, registered works may entitle you to recover both statutory damages and attorney's fees, in the context of a victorious lawsuit. Furthermore, if a registration occurs within five years of publication, it is considered prima facie evidence in court of its validity and of the facts stated in the Certificate of Copyright.

Over the years, some myths and urban legends pertaining to copyrights have arisen. For example, did you know that foreigners and minors can apply for copyrights? Neither nationality, domicile, nor age bar a person's entitlement to apply for a U.S. Copyright.

As another example, there is no such thing as a so-called "Poor Man's Copyright." Simply stated, this is the anecdotal practice of mailing yourself a copy of your own work. As a matter of objective fact, there is no such procedure available to gain legal protection under U.S. copyright law. This practice is not a substitute for a valid copyright registration. Similarly, registration with the Writers Guild of America (WGA) also fails to serve as a substitute for registration.

Geographically speaking, how far will your copyright protection extend? The short answer is that the United States has copyright treaties and/or other legal relationships with many other countries throughout the world. The Berne Convention [for the Protection of Literary and Artistic Works] has more than 160 signatory nations, while the WIPO Copyright Treaty has 64 member countries. Signatory countries honor the copyrights of each other's citizens. However, you should understand that the United States does not have such a treaty or international relationship with every country; some non-participants are Afghanistan, Iran, Iraq, Kuwait, Taiwan, and Yemen. Interestingly, China is a signatory but, to be sure, there are real and weighty concerns about China's enforcement of U.S. copyright rights against commercial pirating, or the lack thereof.

It should be kept in mind that there are some works or types of material that are, generally speaking, not eligible for copyright protection. Some of the more noteworthy examples include: ideas, procedures, methods, systems, processes, concepts, principles, and discoveries. Similarly, it is not clear cut that mere lists of ingredients or contents, without some original elements, are copyrightable subject-matter; and the same would hold true for familiar symbols or designs. In addition, works consisting entirely of information that have no original authorship (e.g., calendars, tape measures, rulers, height and weight charts) are generally not copyrightable. Names, and short phrases or terms likewise are not proper subjects of copyrights. (State or Federal trademark rights may, however, provide a remedy in the absence of copyright protection.)

Your Copyright Attorney can answer questions about publication and licensing of the work. As is the case with most other forms of property, copyrights are freely transferable and assignable. Exclusive transfers of rights require a written agreement, which is something your Intellectual Property Law practitioner can prepare for you. Copyrights may also be conveyed by operation of law and be bequeathed by will or, as may be applicable, can pass as personal property in accordance with state laws of intestate succession.

How long does copyright protection last? If you have created your work on or after January 1, 1978, that work (which is automatically protected from the moment of its creation) ordinarily will enjoy legal protection for the term of the author's life, plus an additional seventy (70) years after the author's death. For works made for hire, as well as anonymous and pseudonymous works, the duration of copyright is 95 years from the first publication, or 120 years from creation, whichever is shorter. For older works created before January 1, 1978 and works created before January 1, 1978, but not published or registered by that date, different time periods may apply.

Your Copyright Lawyer is also available to assist in navigating the regulatory procedures to properly register and maintain your work. In addition, you may have situations requiring renewal of a previous registration. Other types of issues which can arise are corrections or amplifications of existing registrations. There also is a relatively new procedure or service offered by the U.S. Copyright Office which provides for pre-registration for works that have had a history of pre-release piracy and infringement, such as motion pictures, sound records, musical compositions, computer programs and video games, advertising and marketing photographs, and, literary works being prepared for publication in book form. In order to be eligible for pre-registration, a work must be unpublished and be in the process of being prepared for commercial distribution. Pre-registration is not a substitute for registration but offers legal protection prior to publication. The pre-registration process costs $115 per application and is available only on an on-line basis with the Copyright Office (as of April 21, 2011).

Once your Intellectual Property Law attorney has submitted your U.S. Copyright Application, based on the properly selected official form, together with the correct filing fee and the appropriate deposit material, the Copyright Office will process your payment and examine the Application and deposit material, in order to ensure that all is in compliance with U.S. Copyright Law and regulations. Eventually, assuming that your application is complete and accurate, you will be issued a U.S. Copyright Registration and assigned a registration number in the context of the Certificate of Registration. While it could take even longer, it generally takes a number of months until you receive such a Certificate of Registration. However, the delay is only for receipt of the Certificate; the effective date of the copyright will be retroactive to the date of the Copyright Office's receipt of your Application.

In the overall scheme of things, the copyright process is relatively quick and modestly priced. It bears repeating that the filing fee is only $35 per application. In some instances, more than one work may be marshaled into a "collection," and lumped into a single application, such as in the case of poetry, in order to avoid multiple filing fees. On the other hand, there may often be strong legal reasons to file separate applications, not the least of which would be the computation of money damages in case of piracy, for each separate infringement, on each separate Application/Registration. In addition to the filing fee, of course, one must factor in the attorney's fees. Nevertheless, in most instances, there should not be any unduly protracted expenditures of attorney time involved in a copyright application.

Given the relatively modest legal expense involved, it is money well spent, for you to sit down with your Copyright Lawyer to discuss your intellectual property strategies in furtherance of your business objectives and financial goals. Equally important, of course, will be a frank discussion of what you and/or your company should not be doing, in terms of unintentionally infringing the protected works of others. Your Intellectual Property Law attorney can explain the relevant definitions, terms and concepts, such as "work for hire" and "fair use." Also, best left to the legal professionals are your queries regarding: works in the "public domain"; works that you have "borrowed," but do not charge for; the "sharing" of musical works; plagiarism; appropriation of "out of print" works; copying someone else's work, while crediting the author; the rights of photographers; searching a particular author's works; "fair use" utilizing only a small amount of another's work or utilizing another's work for only a short period of time; use of the works for educational purposes; and the use of works appearing on the world-wide-web.

At the end of the day, the goal should be to foster and facilitate your commitment to conduct your business dealings and relationships with honesty, integrity, and professionalism. Once branded as an Intellectual Property or copyright "pirate," or "predator," not only will your business' name, goodwill and reputation suffer, but the legal ramifications, court room consequences and financial fall-out could be severe.

One simple rule should hold you in good stead, pending your consultation with your Intellectual Property Law attorney. At all times, you ought to place a premium on creativity. Make certain your executives and employees comprehend that copying is neither right, nor a right, unless you hold the copyright. In the final analysis, it is not all that difficult. Follow the biblical mandate, "Thou shalt not steal." Forget about the old adage that "imitation is the sincerest form of flattery." It has no application in the copyright context. Rather, remember what your public school teachers taught you: "Do not copy your neighbor's work." If you have to rationalize, or conjure up justifications for what you are doing, it is probably illegal, not to mention unscrupulous and unethical.

Above all, make a prompt appointment to sit down with your Intellectual Property Law attorney and discuss these matters. The practical result should be a bigger and better bang for your business bucks!

 

About Henkel & Cohen

Henkel &Cohen, P.A. is a Miami, Florida boutique business litigation law firm whose partners hold the highest AV rating from Martindale-Hubbell®. For additional biographical and contact information, please visit the firm's website at www.miamibusinesslitigators.com.

 

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