11/ 05/ 2007
by Tami Kamin-Meyer
Picture this: In a moment of creative genius, you invent the most descriptive, persuasive and proactive copy to promote your small business, and in your excitement, you describe it verbatim to a colleague while talking on your cell phone in a public café.
Unbeknownst to you, your biggest competitor and a well-known sneak was enjoying some java in the booth next to yours. He listened intently as you described your idea in detail, and before the week was out, his latest campaign ad featured your stroke of creative genius.
Oops.
The first thing you should have done, after savoring your moment of genius, was to register your creation with the U.S. Copyright Office, says Adam Nelson, a senior managing consultant in the data security and privacy practice at IBM in Chicago. Sure, writing the letter C inside a circle either at the top or the bottom of the creation would have also given it some copyright protection, even that won't provide the legal protections reserved for those who formally file for a copyright.
What is a copyright?
A copyright is one of the four main types of intellectual property. The other three include trademarks, trade secrets and patents. Violating a copyright used to mean taking someone else’s creation by coping it or stealing it in another form. However, in today’s high-tech world, where information is instantly attainable via the Internet, e-mail, Web sites and even the Intranet, copyright infringement is easier to accomplish and more difficult to police.
A copyright protects original works of authorship, including literary, dramatic, musical and artistic works such as poetry, novels, movies, songs, computer software and architecture. However, while it does not protect facts, ideas, systems or methods of operation, copyright laws may allow some legal recourse if the way ideas are conveyed have copyright protection.
In order for a creative work to qualify for copyright protection, it must be original. In addition, its creation must be the result of some effort by its innovator or author, although copyright law does not specify how much effort is required.
Trademarks, trade secrets and more
Trademarks are names or symbols under which goods or services are offered for sale, says Michael J. Gallagher, an attorney in Columbus, Ohio. A different type of trademark is a service mark, which covers specific services a company offers.
A trade secret is sensitive information intrinsically linked to the business processes that fuel an organization, such as client lists or business practices.
Filing with the U.S. Patent and Trademark Office (USPTO) in Washington, D.C. protects trademarks. However, with the advent of the Internet and a global economy, nations around the world realized they lacked a method of protecting trademarks worldwide. In fact, companies used to have to register their trademark in each country where their goods were sold, says Joe Dreitler, a Columbus lawyer.
How long does a copyright last?
For works published after 1977, a copyright lasts for the life of the author, plus 70 years. However, if the work is a work for hire (meaning it is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.
All works published in the United States before 1923 are in the public domain. Works published after 1922 but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author, plus 70 years.
If you register your copyright within five years of the creation’s first publication, it’s “prima facie” evidence in a court of law that the material is protected by copyright laws, Nelson says. Potential legal remedies for violating that law include statutory damages and legal fees.
Free legal advice
According to Nelson, when it comes to copyrights, patents and trademarks, “Hire an attorney who specializes in the field so they know their stuff. Don't go to a generalist.”
Nelson also suggests that small-business owners interview lawyers they want to hire. That means doing some research about the lawyer’s level of experience, his standing with your state’s bar association and discovering whether he has been disciplined by the state supreme court for any conduct unbecoming of an attorney.
Adds Nelson, “Don't be afraid to ask [lawyers] about the fees they charge up-front.”
If you're not sure how to find an attorney who specializes in intellectual property, Nelson offers this advice: Contact your local bar association or your state’s bar association, and ask if it has a referral service. Another venue ripe with information is your industry’s peer group. “Oftentimes, [these groups] even offer classes related to the subjects you're interested in that will help you establish connections and obtain references,” Nelson says.
