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October 26, 2017


Just like trade secrets and trademarks, copyrights are another type of intellectual property that exists even without formal registration. Copyright law protects creative expression, and it does so as soon as you have written, recorded, typed, or photographed it. Works of authorship include the following categories:
· Literary works
· Musical works, including any accompanying works
· Dramatic works, including any accompanying music
· Pantomimes and choreographic works
· Pictorial, graphic and sculptural works
· Motion pictures and other audiovisual works
· Sound recordings
· Architectural works
How copyrights are created: The only two requirements to have a copyright are originality and fixation. There are also some distinctions between things that, while original and fixed, are not capable of being copyrighted. We’ll quickly go through the two required elements, and then get into the somewhat trickier parts.
Originality: Originality is a low standard to meet; if you created it, it is yours. Usually. Copyright requires individualized and subjective decisions of the author for something to be considered creative. Facts, data, and statistics cannot be considered original even if it took effort and labor to come up with them. Compilations of facts organized in a creative way (such as Rick Steve’s Europe Through the Back Door) may become copyrightable but the copyright protection only applies to the creative organization or selection, and never to the underlying facts themselves.
Fixation: For a work to be considered fixed it must be stable for a certain period of time, and the fixation must be authorized by the author. To be sufficiently durable it must either be stable or last long enough to permit it to be perceived, reproduced, or otherwise communicated for a period of time. Echoes don’t count, but a sand castle built at low tide probably would; if you are talking about something in between, call a copyright attorney.
The method of fixation doesn’t really matter; it can be almost anything from a marble sculpture to film, even a computer’s RAM, and everything in between. Lastly, it must become fixed by, or under the authority of, the author. That simply means that the author must be the one to record, or authorize someone else to record, their performance, for example. An unauthorized fixation may not give

anyone any rights, and may even infringe on the author’s copyright if the work was already protected. It’s the difference between a singer recording their own concert performance (the singer owns the copyright in the recording) and a bootleg copy someone in the audience makes on their phone (an unauthorized recording that no one owns, but may infringe on the artist’s copyright to the song itself).
Ideas vs. expressions: Just as facts cannot be protected by copyrights, ideas cannot be copyrighted either. Even if they are very creative ideas they cannot be monopolized by the author. However, original expression of an idea is copyrightable. Sometimes it can be quite difficult to determine where the line will be drawn between idea and expression, and, in fact, the protection of an author’s expression extends somewhat further than the literal words on the page. The rationale for this theory is that if a copyright was limited to the exact text plagiarists would escape by making small, inconsequential variations.
Alongside the issue of ideas being separate from the expression there is the “merger doctrine.” The merger doctrine essentially states that when ideas merge with expression there is no copyright. If the only way to convey the idea is with a particular expression (e.g. a fillable form may be original expression but is necessary for the use of the idea behind a particular system of bookkeeping) then the two are inseparable. If that happens, the merger doctrine applies and the expression is not protected by copyright. Generally, if there are practical, real-world applications for the thing trying to be copyrighted, the merger doctrine will step in.
Useful articles: If something is truly practical, the appropriate IP protection is a patent rather than a copyright. The “useful article doctrine” divides the worlds of patents and copyrights. Items that are strictly useful fall within the realm of patents, while artistic creations belong in the world of copyright law. For example, a “useful article” is an article that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Useful articles can be pictorial, graphic and sculptural works that are capable of receiving copyright protection only if the features are capable of existing independently of the useful aspects of the article. This applies when copyrighted work has both a practical, functional aspect and an expressive aspect. It ensures that the copyright’s protection is limited to the
The artistic aspects of Disney’s Mickey Mouse Phone are protected by copyright, but the functional aspects of the phone itself are not.

expressive aspect and does not cover the practical, functional aspect. This isn’t always a straightforward analysis. Depending on jurisdiction, courts apply a few different tests to determine if the work falls under the useful article doctrine.
One test looks to see what was in the creator’s mind throughout the design process. Were the expressive elements significantly influenced by functional considerations? If so, there will be no copyright protection for those elements. Another test focuses on the form of the work and looks at a reasonable person standard. Does the article evoke a concept separate from its physical function? If it does not then the creative elements are not distinct from the functional ones, and there is copyright. And still a third test focuses on whether the expressive aspects of the work make it function better. Does the expressive part of the article make the article function? If so, there will be no copyright.
Who owns the copyright: Normally whoever creates the creative work is the author, and the owner, of the work. If you work with another person to create something that becomes a joint work, the two of you are co-authors with equal rights to the work. The software you and your co-founder created before you formed your LLC is a joint work, owned equally by the two of you. In certain circumstances, however, that isn’t quite as clear cut. If your employee creates something for you that is within the scope of his employment your company is actually considered the author of the work, and will own all of the rights to it; this is called a “work for hire.” If you hire an independent contractor or outside service provider to create something for you their work product may be considered a work for hire, if, and only if, there is a signed agreement stating that it is a work for hire.
This is a very, very common mistake that businesses make, and it can cost you if you aren’t careful. In addition, only certain types of work are even eligible to be considered work for hire when it comes to non-employees, so be very careful before relying on a “work for hire agreement” to secure your rights to a project. The most common “work for hire” that simply is not a work for hire is software; unless it meets one of the specific requirements of the copyright statute software is not considered a work for hire, and your “work for hire contract” will not make you the owner of the program. If you fail to have an effective copyright transfer agreement your independent contractor is going to be the author AND the owner of the software he or she develops, or the promotional video they create. In the case of software, you might be liable for copyright infringement if you create version 2.0 of the operating system the programming contractors created for you. Your business is going to pay for it, make sure your business owns it.
Copyrights can be sold, transferred, or licensed to someone other than the author, who is the initial owner of the work. But, and this is an important thing to

remember, any agreement to transfer ownership of a copyright must be in writing. Any verbal agreement to transfer ownership in a copyrighted work is unenforceable. So, if you want to buy someone else’s copyright, get it in writing.
Protecting your copyright: Copyrights do not need to be registered, and you don’t need to put a copyright notice on anything you create. But doing so is a very good idea. Copyrights can be registered very easily, and very cheaply, and once they are registered you have a legal document that is proof of your ownership for the duration of the copyright: for individual authors that means for a period of 70 years after their death, and for businesses that means 120 years. That’s probably a bit longer than you will need to protect the work, but that’s what you’ll get when you register. In addition, putting a copyright notice on your image or document will help you protect your rights by making everyone else aware of your claim.
Unlike a trade secret or even a trademark, you cannot lose your copyright if you don’t protect it. It may be harder to prove that you own it if you don’t stop people from taking it, especially if you don’t register it, but you don’t lose your rights altogether simply because you don’t enforce them.
Infringement and liability: If you copy a copyrighted work without permission, you have infringed on the rights of the owner. But is that the only way to infringe? No, copyrights convey a bundle of rights, not just the right to prevent copying. Copyrights give the owner the exclusive right to reproduce a work, to make derivative works based on the copyrighted work (a prequel to Harry Potter, for instance), to distribute copies, to perform their music or theatrical work in public, to display their work publicly, or to broadcast their music. If you do any of these to works belonging to someone else without obtaining the necessary permission or license, you may have infringed on their rights as a copyright owner.
Fair use: The quicksand of the copyright world is “fair use.” Almost everyone has heard of it, and almost nobody understands how it works. Relying on fair use can be the quickest way to find yourself on the wrong side of a copyright infringement claim. If you want to use something, or a portion of something, that someone else created and you intend to rely on fair use remember this one simple guideline: DON’T DO IT. If you don’t get the proper assistance and analysis ahead of time you may be in need of expert legal defense counsel afterwards. Avoid the problem, and do not rely on fair use, because the odds are it won’t apply.
The public domain: Any creative work that has either been protected by a copyright that has expired (it takes more than seventy years for a copyright to expire on its own), or that has been granted to the public by the author/owner of the work, is considered in the public domain. These works can be freely used,

This guide is provided for educational purposes by MR LAW® and is not intended to be considered legal advice

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