Copyrights

The copyright laws protect original works of authorship against copying by others. For businesses that market branded products and services, copyright issues can arise in a variety of circumstances.

For example, even though the basic copyright inheres in every copyrightable work upon creation, you may wish to obtain additional protection for your advertisements, brochures, websites and other marketing materials through copyright registration. In the U.S., copyright registration is relatively easy and inexpensive, and provides a number of meaningful benefits, including presumptive notice of your copyright to the world and the ability to recover statutory damages and attorneys fees against infringers.

Copyrights can also sometimes be a helpful tool in protecting products themselves against copying. Patents will protect novel product features or ornamental designs, but even when the relatively high standard of "non-obviousness" is met, protection only begins once the patent is actually issued, a process which can take months or years and which can often extend beyond the product cycle in today's fast-paced marketplace. Trademark protection is still theoretically available under U.S. law for distinctive non-functional product designs, but only upon proof that a substantial portion of the consuming public regards the product's appearance as a symbol of source, which is a very difficult thing to prove indeed.

Depending on the nature of the product, copyrights may help fill this void. When the product is itself a copyrightable work (a book, a poster, or computer software, for example) the applications are obvious, but there may also be potential to protect at least some aspects of other types of products as well. The U.S. Copyright Office is resistant to registering product shapes as such, but if there are purely decorative or ornamental features or motifs which can be abstracted from the product as a whole, registration can often be accomplished. The easiest examples are products which feature decorative graphic designs, such as home textiles or floor coverings, but any original ornamental feature is a possible candidate. If such a feature is deemed to be copyrightable subject matter, the advantages can be significant: the threshold for originality is much lower than the patent law's obviousness standard, protection is effective from first publication, and damages can be much easier to prove and recover than under either patent or trademark law.

Apart from the possible benefits to be derived from copyright protection, every business must consider copyrights from a defensive perspective. Advertisements, packaging, signage, web sites and promotional materials all can incorporate multiple forms of copyrightable subject matter, including photos and illustrations, text, graphic designs and color schemes. Rights need to be secured in all these materials to avoid potential copyright liability down the road. Even if such materials are specifically commissioned for your exclusive use, you may not own the copyright unless you have a "work-for-hire" agreement with the independent creator containing appropriate language.

We are well-equipped to advise clients on all such copyright-related issues. We can, of course, facilitate obtaining copyright registrations, but unless the subject matter is unusual or controversial, that process is relatively simple and straightforward. We add much more value when assisting the client in developing copyright compliance policies, as well as formulating plans to effectively leverage copyright protection as part of an overall intellectual property strategy.

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