08/ 03/ 2006
by Tami Kamin-Meyer
Copyrights, trademarks and patents. Oh my!
If you've ever had an idea you wanted to protect from poachers, but weren't certain how to proceed, take heart. Just the thought of weaving through the bureaucratic quagmire of obtaining a copyright, trademark or patent is enough to make you consider vaulting the creation in your mind.
Don't let fear of the unknown daunt you. Securing a copyright for your work of creative expression is simple. "The United States is a member of the 'Berne Copyright Convention,' which provides that everything anyone creates that is capable of being copyrighted is copyrighted automatically upon creation," says Bob Ellis, an attorney in Columbus, Ohio, whose law practice focuses on intellectual property.
There is no need to type "All rights reserved" or even "© 2006," Ellis says. Perhaps surprisingly, even mundane, everyday writings, such as e-mails, are automatically copyrighted. While it is not mandatory to file a copyright anywhere for it to be effective, doing so does afford additional legal protections to the copyright holder. To register a copyright, simply download the applicable forms from the U.S. Copyright Office Web site, found at www.copyright.gov.
According to Ellis, if you register a work and sue someone for copyright infringement, you not only have the legal right to obtain an injunction ordering the infringement to stop, you may also recover "substantial statutory damages," which are damages you don't have to prove, and attorney fees. Ellis says such damages can "easily run to $100,000 per infringing work if the judge wants to impose it." Infringement of an unregistered copyright can only lead to an injunction and the recovery of actual damages—the type that must be proven.
"The threat of statutory damages seems to deter many would-be infringers," Ellis says.
According to the U.S. Copyright Office Web site, copyright is a form of protection that grants exclusive rights to published and unpublished works. Almost any original expression qualifies for copyright protection as soon as it is fixed in tangible form.
Copyright materials include:
- Books, periodicals and manuscripts
- Computer programs
- Films, tapes and discs
- Musical compositions, including lyrics
- Art in a variety of forms, including fine art, graphic art, applied art and photographs
- Maps, globes, models and charts
Copyright protection lasts for the life of the author plus 70 years. For works anonymously written or created under a pseudonym, the protection lasts 120 years from the date of creation or 90 years from the date of first publication, whichever is less.
According to Ellis, one area of copyright-related law that particularly confuses small-business owners is the work-for-hire doctrine. "If a small-business owner hires an independent contractor to produce a copyrighted work, such as a Web site, the copyright to the resulting product will belong to the person who produced it, not the small business that paid for it," he explains. However, he notes, works produced by employees as part of their job automatically belong to the employer.
Trademarks and patents apply to different creations than do copyrights. A patent extends a set of exclusive rights to an inventor or applicant for a limited amount of time, usually 20 years from the filing date. Obtaining a patent is far more complex than a copyright, as it involves a rigorous application process with the U.S. Patent and Trademark Office. A trademark is a distinctive name, phrase, symbol, design or picture used by a business to identify itself and its products to consumers. Since the registration process to secure a trademark and patent is complicated, Ellis suggests hiring a qualified attorney to handle your application.
Tami Kamin-Meyer is an Ohio attorney and writer.
