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There are many moving pieces when it comes to building a startup. And while it’s easy to get caught up in the whirlwind of bringing a new product or service to life, failing to protect this intellectual property can have serious consequences: it could stop you from blocking counterfeit products, exposing you to potential lawsuits. and the valuation investors/acquirers would put on your business.
Copyright ownership provides a certain set of exclusive rights, including the right to copy the work, the ability to create derivative works, and the rights to distribute, publicly perform, and/or display the work. All these rights exist for the duration of the copyright.
Whether you’re a startup or a large, established company, if you’re developing creative work, copyright protection can be an important part of your overall IP strategy.
What is copyright?
Copyright is a form of intellectual property protection granted to “original works of authorshipand is protected by federal law. Whether your original work is computer software documentation, website content, artwork, book or song, you may be able to obtain a copyright to protect it.
While some courts have referred to the work as a “creative spark“To be eligible for copyright protection, there must be a material medium, which means that the work must also be recorded on a permanent medium so that it can be observed, reproduced or communicated to others. In other words, you you can’t copyright an idea in your head. You have to express it in a book, on a computer or something like that.
Related: A Basic Intellectual Property Guide for Every businesstraverse.com
How long do copyrights last?
Like patents, copyrights are valid for a limited period of time. In general, copyright is for the life of the author plus 70 years. Copyright can also last 95 years from publication or 120 years from creation of the work, whichever is earlier.
The author of the copyrighted work licensed or assigned to a third party (such as your startup) may have the right to terminate the license or assignment 35-40 years after its creation.
So, how do you get copyright protection? It’s easy. Create an original work and fix it in a tangible medium.
How does your startup own the copyright to the work created by employees/contractors? It depends. There are two ways for a company to own copyrights to works created by employees/contractors:
like a work made to rent
In general, when an employee creates a copyrighted work as part of their employment, it is considered a “work made for hire.” As a result, the employer is the legal author for copyright purposes. But it may not always be clear whether an employee has created something as part of their employment. So it’s not necessarily the case that just because your employee has developed something for your startup, the startup owns the copyright.
For contractors, a limited number of types of works may be considered works made for hire, but require a written agreement with the contractor. Many types of works simply should not be considered works made for hire under copyright law.
If a startup wants to have the copyright to a work that is not a rental work, the author can transfer the copyright to the startup. A transfer of copyrights must be demonstrated in writing.
As a result, you must have a written agreement to confirm the copyright for your startup with employees and contractors. It is necessary for employees, as it may not be clear that the copyrighted material was created as part of their employment (and thus a work made for hire). For contractors, it is always necessary to have a written agreement (whether it is a contract or a work commissioned).
One note: remember how we noted above that if someone assigns a copyright to your startup, they could potentially terminate that assignment in 35 or 40 years. That is a potential risk to your copyrights. This right to terminate an assignment does not apply to hired works.
Business owners should always ensure that their service providers “assign” their copyright interest to the IP address they create. The Copyright Act prescribes that any transfer of copyright must be made in writing.
Related: Someone Stole Your Design? 3 ways to fight back.
Do I have to register my copyright?
No registration is required for copyright protection. However, there are great advantages to copyright registration, which is a simple and straightforward process.
All you need to do is apply to the Copyright Office and provide a copy of the work.
In addition to creating the presumption of validity, registration is also required to sue someone for copyright infringement. Technically, you can even register right before a lawsuit. But you can’t get attorney fees if the infringement happened before the registration. You will also not be able to claim statutory damages unless there is a post-registration infringement, but it is important to note that you may be able to obtain actual damages (ie lost profits) for any infringement that occurred before registration. But they can be difficult to prove. The Copyright Act provides thousands of dollars in legal damages that are easier to get in most cases.
Are there exceptions to copyright protection?
Yes, even if you own a copyright, others can still make some use of your work. There are “fair use” defenses available to third parties who wish to use copyrighted works, although these are most powerful in educational settings. Fair use is a very fact-specific area that you should discuss with a lawyer.
Someone can independently create a work that is strikingly similar to yours, but does not infringe your copyright. Copyright infringement can only be proven by showing that the “infringer” copied your work.
Remember: you can’t get copyrights on ideas. So just because a work contains ideas you’ve developed doesn’t mean the work infringes on your copyright.
The bottom line is: copyright protection is a great way for startups to protect their intellectual property and creative works. Whether you’re seeking copyright protection for source code or other programs and work that is susceptible to infringing, legally protecting your creative materials provides additional security for your work and is worth considering.
Related: How to Proactively Protect Your Intellectual Property Online