By Samuel Lewis - Feldman Gale, P.A.

Anecdotal evidence suggests that the average person believes they know far more about Copyright Law than they actually do.  In many instances, misapprehension leads to incorrect assumptions, which in turn can create significant and costly problems for business owners.

The following assumptions and misconceptions are easily avoided, and doing so may help avoid considerable expense down the road:

• If you pay to have a copyrightable work created, then you own it.  Perhaps the most common misconception, this assumption only proves correct when dealing with full-time employees who create copyrightable works for the business within the scope of their employment.  Aside from a full-time employment situation, the general rule is that the person who creates a work owns the copyrights to the work.  When applied to a typical situation where a business pays a contractor to create a copyrightable work, even if the business has paid for the work, the contractor who created it retains ownership of the copyrights.  In order to ensure that your business owns the rights to copyrightable works that are created for it—whether by a contractor or by a full-time employee within the scope of his or her employment—it is best to use formal agreements that formally transfer the rights, including the copyrights, to all creations to the business.

• Copyright Law does not apply to works displayed on the Internet without a copyright notice. While use of the copyright symbol (the “c” in a circle, ©, not to be confused with “@”) was mandatory on published works prior to March 1989, that requirement no longer exists and use of the copyright symbol is optional (although practitioners still encourage its use).  Copyrighted works now commonly appear on the Internet without any sort of copyright notice, and the lack of notice does not in any way impair the legal protections afforded by the Copyright Act.  For all works found on the Internet (including text, graphics, photographs, music, etc.), the best course of action is to presume those works are protected by Copyright Law and only available for use if they are licensed directly from the owner or under one of the various public and/or Open Source licensing approaches (such as GNU Public License, Creative Commons, etc.).

• You can copyright something by mailing it to yourself.  Often called the poor-man’s version of copyright registration, mailing a copyrightable work to yourself is not a valid substitution for copyright registration.  At best, the approach could be described as being penny-wise and pound-foolish.  Copyright registration is generally straight-forward (unless you’re dealing with computer software or trade secret materials) and relatively inexpensive (the typical registration fee is $35).  In addition, the current Copyright Act includes incentives to encourage owners to promptly register their copyrights:  in addition to actual damages and injunctive relief, where the copyright was registered before it was infringed, the court may also award statutory damages and attorney’s fees.  Given how difficult and costly it can be to prove actual damages in a copyright infringement action, statutory damages (the court has discretion to award up to a maximum of $30,000 for infringement and up to $150,000 for willful infringement) can make a tremendous difference in the value of a copyright infringement action.

• Common law copyright still exists.  While at one time there was a concept of common law copyright, the concept has largely disappeared.  Although copyright laws have existed since 1790 (to put this in context, that was one year before the Bill of Rights was ratified), it was not until the last major revision—the Copyright Act of 1976—that the concept of common law copyright was effectively eliminated.  Under the current Copyright Act, federal law applies to copyrightable material once the work has been fixed (e.g., printed, saved to a hard drive, recorded onto magnetic tape, etc.).

• Copyrights must be registered before they can be owned.  Ownership has nothing to do with registration, and you can own a copyrightable work without registering it.  Copyright registration is, in effect, a claim of ownership over a work.  When you register a copyright, you put the world on notice that you own the copyrights for the associated work.  However, it is important to note that registration doesn’t prove ownership, and the Copyright Office doesn’t review the work being registered beyond merely assessing that it appears to be copyrightable.

As noted above, the most common misconception relates to issues of ownership of copyrighted works created by employees and contractors.  The cost of clarifying those rights by way of an agreement is minimal in comparison with the cost of replacing those copyrighted works when you learn that you don’t have the rights you think you have.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Florida.  He can be reached at SLEWIS@FELDMANGALE.COM.


By Samuel Lewis
Feldman Gale, P.A.
2 S. Biscayne Blvd., 30th Floor
Miami, FL 33131
305-358-5001
www.feldmangale.com


South Florida Legal Guide 2012 Edition