YOU'RE RIGHT TO COYPRIGHT

Nearly every business in the world buys insurance: liability insurance, health insurance, property insurance, etc. Few would argue that these are necessary costs in protecting your business’s employees and property.

Surprisingly, however, many businesses, especially small ones, neglect to protect their intellectual property such as company logos, brochures and websites — from infringement. Legally protecting a business’s intellectual property is as important as any other form of insurance a company purchases. And while most businesspeople have heard of patents, copyrights and trademarks, few have a sense of which are needed to protect the intellectual property of their company. We’ll demonstrate how copyright registration can offer your business tremendous protection for less than $150.

Copyright protects “original” works of authorship such as literary, dramatic, musical and other works. Copyright does not protect titles, names, phrases, ideas, systems, processes and factual information that can be protected through trademarks and/or patents. A work of authorship fixed in a tangible medium (e.g., printed materials, recorded commercials, a company website, etc.) is copyrightable so long as there is some element of creativity to the work. While copyright provides a group of rights, most obviously it prevents others from copying and/or distributing the protected work. As a result, copyright registration can assist nearly all businesses in a variety of industries.
The following are typical examples of what is copyrightable:

• Any visual works (company logo, photos, advertisement spreads, catalogs, websites, etc.);
• Any written materials (manuals, guides, articles, business plans, software
code, website code or website copy);
• Any recorded media (videos, presentations, radio and television commercials and audio instructionals).

WHY SHOULD I REGISTER FOR A COPYRIGHT?

Although registration of a copyright is not required in the United States, you don’t get the full benefit of a copyright without registration. Not registering denies a copyright holder a variety of useful and cost-effective tools to pursue and deter infringers. The first myth of copyright law is that by simply creating a work eligible for copyright (e.g., a book, logo, databases, trade catalogs, advertising material, etc.), the creator enjoys the full protection and benefits of federal copyright law. While creating a work typically creates a copyright once it is fixed, (e.g., written, recorded or photographed), fully exploiting the benefits of that copyright requires registration with the United States Copyright Office.

Registration (a $30 fee) has the following advantages:

• You cannot pursue an infringer in federal court without registering. Hence registration is critical to defending your copyright;

• Registration before infringement provides access to additional damage awards, including but not limited to attorneys’ fees. Otherwise only an award of “actual” damages (meaning the damages that you suffered as a result of the infringement) is available to the copyright owner (but you still must register before filing your suit). The plaintiff, therefore, has a choice of either getting into a serious battle with accountants or asking the court for statutory damages based on an amount that it considers just.

• Registration places the world on legal notice of the copyrighted work’s existence;
• If your work is registered within five years of first publication (distribution to the public), then a court will assume that you are the rightful owner of your copyright and that the copyright is valid (this will save you substantial legal fees when faced with copyright litigation);

• Registration enables the copyright holder to have the U.S. Customs Service prevent importation of infringing works. Although an attorney may be consulted, copyright registration can generally be done on your own. Registration is a very simple process, and all the necessary forms can be downloaded from the Copyright Office’s website, www.copyright.gov. The site also provides detailed instructions on how to fill out the forms and what each application package should contain. There are several forms, and each covers major categories (e.g., Form TX is for a mostly text-based work). However, each form shares the same general format. Typically, your registration should include the following per work:

THE PROPER FORM:
• SE: for serials, works issued or intended to be issued in successive parts bearing numerical or chronological designations and intended to be continued indefinitely (periodicals, newspapers, magazines, newsletters, annuals, journals, etc.);

• SR: for sound recordings;

• TX: for non dramatic literary works such as company manuals, brochures, newsletters (not a play or screenplay, which is registered with Form PA);

• VA: for visual works (pictorial, graphic, and sculptural works, including
architectural works);

• A $30 filing fee, required for each application;

• A non returnable deposit of the work being registered (e.g., a copy of the company newsletter).

MAKING COPYRIGHT REGISTRATION WORK FOR YOU

Businesses can use copyright registration to protect a variety of typical and valuable business items that should be kept out of the competition’s hands. Consider the following hypothetical: Jane gets a small business loan and opens Jane’s Hardware Store. She has a unique, personality-driven brand that caters to busy urban apartment owners with little time and home improvement experience. She hires a Web and graphic designer and a printing company to create 1) a unique and eye-catching logo; 2) a colorful and smartly organized store catalog; 3) a website; and 4) a weekly column on home repair that she publishes on her website, through a circular and in various home improvement journals. Each item is individually eligible for copyright registration. With a tight legal budget, Jane decides to go with copyrights as her main form of protection. Jane promptly registers four copyrights — one each for her logo and her website as visual works, and one each for her catalog and her columns as literary works — without a lawyer, for a grand total of $120 in filing fees.

Suppose later that year, Jack’s Hardware Store opens on the other side of town. Jack sees how well Jane has been doing and uses Jane’s logo and catalog as his own. Jack also builds a website that strongly resembles Jane’s and posts her articles on his site with his name as the author. Jane at this point has spent most of her start-up budget and cannot afford a protracted lawsuit. Fortunately, she finds a lawyer willing to take her case on a contingency fee basis, because she has registered her copyrights and he knows he can recover his fees and predetermined statutory damages. The lawyer sends a strong cease-and-desist letter that makes clear that the infringed logo, site, etc., are under copyright registration and that he will go after Jack for the full extent of statutory and punitive damages, as well as attorney’s fees.

As a result, Jack quickly removes the infringing materials and ceases to siphon Jane’s hard-earned goodwill. Jane’s registrations gave her invaluable tools to protect her business. Also, statutory damages made the case more attractive to an attorney and made the cease-and-desist letter more compelling.

If a trial followed, unlike a trademark suit, which would require Jane to demonstrate that consumers were likely to confuse Jack’s Hardware with Jane’s Hardware, Jane would have to show only that Jack copied any of the items listed above to prevail. Moreover, statutory damages would save Jane time and money in having to prove actual damages. Finally, if Jane had also filed for a trademark, she could pursue damages for both trademark and copyright infringement. If you decide that there are aspects of your business that need copyright registration, you shouldn’t delay — copyright protection is cheap, easy and powerful.