Miami, Florida based intellectual property attorney assisting clients throughout the State of Florida in copyright protection and copyright infringement matters

To enjoy copyright protection, the creativity/idea must be reduced to a tangible medium of expression. Copyrightable work(s) include novels, plays, software code, songs (words and compositions), musical recordings, textile designs, movies, crafts, photographs, blueprints, buildings, comic strips, website page content, advertising print, TV broadcasts, choreography reduced to a notation or video, etc. Generally, in contrast to inventions which must have a utility to be afforded patent protection, a copyrighted work must have no function.

Copyright Law

Copyright law has evolved with the times. Since 1980, computer software has been afforded copyright protection. As with other work(s) for which copyright protection applies, the software program must be an original work of authorship. The rationale behind copyright protection for software is that the code, whether source code or object code, seems analogous to literary material.

Copyright Protection

Protection under copyright law begins the moment the work is fixed in a tangible medium of expression by the author. Copyright protection does not require that the author ever register the copyright with the U.S. Copyright Office. There is, however, a caveat to this “non-registered” scenario. To be able to sue an infringer of the copyrighted work, the copyright owner must first register the work with the U.S. Copyright Office. The proper court jurisdiction for lawsuits involving copyright infringement is federal court.  The U.S. Copyright Office does provide an expedited procedure for registering a copyright on the basis of imminent legal action.

We would recommend that the creator of a copyrighted work go ahead and federally register the copyrighted work, especially where the creator plans to show the work to others or publish the work. Registration of the copyrighted work with the U.S. Copyright Office before the alleged infringement has occurred or within 3 months of publication provides the opportunity for the plaintiff to seek statutory damages up to $150,000.00. The registration process is very cost effective, and in most cases can be done with the need of an attorney.

For a person (individual, business entity, organization, etc.) that is either: a) hiring/commissioning an independent contractor to create a copyrightable work; or b) retains employees to create copyrightable work(s)within the scope of their job duties, it is important for the person to understand the concept of copyright ownership under copyright law and the concept of work-made-for-hire. As stated in various web pages within the Business and Intellectual Property Law headings of this website, intellectual property (IP) rights can be a very valuable asset, and copyright work(s) constitute potentially intellectual property under the law. Just consider Microsoft’s copyrighted software products.

Generally the creator of the copyrighted work is recognized as the owner of the copyright and the copyright’s associated bundle of rights. This bundle of rights includes the exclusive right to reproduce the work; display the work; distribute the work; perform the work; and prepare derivative work(s) of the work (e.g., converting a novel to a movie). The author of the copyrighted work does not even have to take any steps to secure the bundle of rights. That is the author can “sit on” on his/her work.

The simple of issue of copyright ownership becomes more complicated when the work is being created by an employee or an independent contractor, whichever the case may be. Steps need to be taken to help ensure that the employer (and not the employee) will own the rights to any and all copyrighted work(s) created by its employees. Where an employee is the creator, copyright law provides that the work created by an employee within the scope of his or her employment will be deemed a work-made-for-hire. This means that the employer and not the employee is considered the author.  Employers should require that this commitment be included in an employment contract signed by the employee and retained in the employee’s file.

Steps also need to be taken to ensure that the person retaining the services of an independent contractor to create a work will own the rights to the created work(s) for which the independent contractor is being paid.  For the work to be considered a work-made-for-hire in this scenario, a) the work must fall into one of nine categories listed in the statutory definition; and b) the parties must have agreed in writing that the work is a work-made-for-hire. As a backup, we, as IP attorneys, always include an additional provision in any work-made-for-hire agreement we draft on behalf of clients to cover situations where the commissioned work does not necessarily fall into one of the nine specified categories. This additional provision will also cover work(s) such as logos which may not be eligible for copyright protection because they are “too simple” but which may be used by the person for branding or trademark purposes.

The rationale behind such agreements is to ensure that the payor, whether an employer or the person retaining the services of an independent contractor, will own the created work(s) and have the right to exploit the work(s). Absent such agreements, the independent contractor and/or employee would have the sole right to “enjoy” the associated bundle of rights. The owner should register the copyrightable work(s) with the U.S. Copyright Office.

Copyright Protection Length

The length of copyright protection is considerably longer than the average patent term. For situations where the author retains the copyright or assigns the copyright and the work was published after January 1, 1978, the term of copyright protection is the life of the author plus 70 years following the author’s death. Where the work was a work-made-for-hire or where the author publishes and registers the work anonymously or under a pseudonym, the term of copyright protection is 95-120 years.

Copyright Infringement Lawsuits

Copyright owners have the right to sue for copyright infringement in federal court providing the copyright has been registered. Infringement means that someone has copied, distributed, displayed, performed, or prepared derivative work(s) without the author’s or owner’s permission.

Copyright law is continually evolving because of the Internet and computer technology which have made it substantially more difficult for the copyright owner to “control” the usage of their copyrighted work(s). For example, the Digital Millennium Copyright Act (DMCA) was enacted by Congress to address copyright issues arising because of internet usage. Specifically, this law provides protections to Internet Service Providers (ISPs) providing that the ISP takes certain steps to reap the benefit of what is known as the safe harbor provision.

If you have any concerns or questions related to copyright ownership; copyright infringement; the DMCA, etc., we encourage you to call us at (305) 279-4740 or contact us online for a FREE consultation.

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