A Crash Course in Copyright Law for Small Business Owners

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A Crash Course in Copyright Law for Small Business Owners

Published By Janet Gershen-Siegel at September 15, 2017

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You may think your business does not really need to think about copyright law, but think again. All businesses should consider intellectual property and how it may affect them.

Background

In the United States, copyright law is covered in the Constitution. Cases brought under copyright law are civil. That means no one can go to jail for copyright infringement.

According to the US Copyright Office,

“Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.”

According to Section 106 of the Copyright Act of 1967, a copyright holder can:

  • Reproduce the work in copies
  • Prepare derivative works based upon the work
  • Distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • Perform the work publicly, such as in music, dance, plays and motion pictures and other audiovisual works
  • Display the work publicly, including the individual images of a motion picture or other audiovisual work
  • Perform the work publicly (in the case of sound recordings) by means of a digital audio transmission

Copyrights are assets and they have value. They can be bought and sold, and even inherited.

In America, copyrights expire after 70 years, but copyright holders often try to get extensions. Never, ever assume a work of art is not copyrighted.

How does this apply?

For the small business owner, intellectual property will generally be about:

  • Any patents the business or its employees hold
  • The copyright in any artwork the business owns or tries to use
  • Trademarks connected to the products the business makes and sells

Ownership of a valid copyright consists of:

  1. An original work
  2. Which can be copyrighted
  3. A point of attachment of the work, such as to permit a claim of copyright (that means authorship)
  4. Compliance with applicable statutory formalities; and
  5. If the copyright holder is not the author, a transfer of rights or other relationship from the author.

A copyright registration certificate from the Copyright Office serves as direct evidence of elements (1) through (4).  Registration with the US Copyright office isn’t necessary to successfully bring an infringement claim. But it’s awfully helpful.

Infringement and its exceptions

If someone uses intellectual property without the owner’s permission, they are said to be infringing on copyright. However, there are some exceptions.

  • Fair Use – nonprofit, personal, and education usage will usually be deemed ‘fair use’. So will criticism, news reporting, commentary, and possibly satire.
  • The nature of the work – if the intellectual property is private and unpublished, then the infringer is more likely to need permission to use or quote it.
  • Amount – a few lines of a 1,000 word novel are probably okay. 75% of that novel? Nope.
  • Market Effect – for fair use to apply licensing has to be unavailable or impossible to obtain; there can’t be a major impact on the intellectual property holder; and it helps if the infringer already owns a legal copy of the work.

What it means to the small business owner

If your company owns intellectual property, or you think you might, it might be a good idea to consult with an intellectual property lawyer. If you have these kinds of assets, they are worth protecting. This means getting patents on inventions and filing for copyright protection for your trademarks and intellectual property.

It also means your own intellectual property needs to be original. You can’t copyright an idea, but the application of an idea can be copyrighted. The idea of a picture of a swan is not subject to copyright, but a specific picture of a swan is. This means – don’t just take images online for use. There may be a copyright in them. How can you tell? Ask the owner of the site where you saw the image. You might be able to purchase a copy or a license and use the image.

You can also make sure you are not infringing as follows:

  • Only use creative commons or public domain images, and only from reputable sites.
  • Pay for images you want to use. Or –
  • Make images yourself.

 

Keep out of copyright hot water and protect your own intellectual property. It’s a business asset!

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