Business owners often consult me because they want to “copyright a name” or “copyright an idea.” Similarly, individuals call me hoping to pursue legal action against someone who has supposedly “infringed” or “stolen” the individuals’ ideas. Unfortunately, neither can be done.

COPYRIGHT PROTECTION

A common misconception exists that names for businesses and ideas can be protected from infringement by obtaining copyright protection. This is a fallacy. In truth, if a business owner wants to protect a name for a business or product or service, the business owner needs to obtain trademark or service mark protection—preferably federal trademark or service mark protection. Ideas cannot be protected at all, at least not until you reduced those ideas into some tangible form (such as an invention or written product). An idea turned into some tangible form may be entitled to protection by patent or copyright.

Copyright protects “original works of authorship fixed in a tangible medium of expression.” “Original work” simply means that the work was independently created by the author and is not a copy of another work. “Fixed in a tangible medium of expression” means that the work in question is expressed in a manner that can be perceived by others. In other words, copyright protects the expression of an idea but not the idea itself.

Copyrightable material

While the standard of originality and creativity necessary to obtain copyright are minimal, names, titles, short phrases (including slogans), fragmentary words or ideas do not qualify. Common categories of works that would qualify for copyright protection include:

  • textual works such as a stories expressed in writing (novels, short stories, screenplays);
  • visual works such as paintings and drawings;
  • performance works such as stories expressed on stage (plays) or choreography performed for an audience (dances); and
  • sound recordings such as musical or motion picture works fixed digitally or on film.

Once an individual has reduced her idea to a tangible expression that qualifies for copyright protection, then, and only then, can an individual pursue others who may have infringed the copyrightable material.

COPYRIGHT INFRINGEMENT

To obtain a valid copyright, an individual need simply be the “author” or creator of a work. A business can also be considered an “author” or owner of a work if an employee of the business created the work or the business acquired rights to the work by contract or assignment. Nothing other than creation need take place for copyrights to attach to a work. This may surprise many people. Many still believe in the myth of the “poor man’s copyright.” This urban legend suggests that when someone mails a copy of a work to herself and keeps the unopened postmarked envelope, that envelope serves as verification of the person’s copyright interest.

Mailing works to yourself will not provide you with any special rights that did not exist prior to the mailing. An individual’s copyright interest attaches upon creation of the work—immediately upon completion. Nevertheless, certain considerations must be taken into account if the owner of copyright-protected material wants to sue a third party for copyright infringement.

To demonstrate infringement of a copyright, the copyright holder must prove (1) that she owns a valid copyright, (2) that the infringer had access to the copyrighted work, and (3) that the infringing work bears a substantial similarity to the copyrighted work.

Ownership of a valid copyright

A copyright registration generally serves as evidence of the validity of a copyright interest. Accordingly, individuals and business owners should file an application for copyright registration upon creation of their creative works if they want to maximize legal protection for those works. In fact, if an individual or business owner wants to file a lawsuit for copyright infringement, a copyright registration is a prerequisite.

A certificate of copyright registration does not created undisputable proof of copyright validity, however. An alleged copyright infringer will have the opportunity at trial, if appropriate, to refute the validity of the copyright covered by the certificate of registration. Nevertheless, obtaining a copyright registration is the first step in establishing the validity of a copyright claim and the right to redress for copyright infringement.

Access to the copyrighted work

The second stage of a copyright infringement claim requires the copyright claimant to establish that the alleged infringer had access to the copyrighted work in question. No matter how much a new movie or book resembles another script or story idea, no copyright infringement occurred if the author of the other work never had an opportunity to see, read or otherwise review the copyright claimant’s material. Amazingly, two or more different people, without exposure to each other, often come up with similar ideas or concepts totally independent of each other. In such a case, no copyright infringement has occurred.

Substantial similarity

When considering the copyright infringement of a work, the final step mandates an analysis of the “substantial similarity” between the original work and the alleged infringing work. This analysis requires that all elements of the works be evaluated to determine whether the expression of text, artwork, and the arrangement of the various elements of the works are similar as a whole. If the factfinders consider the overall expression of each work so similar that a consumer would think the author of the works are the same, then copyright infringement will likely to be found.

CONCLUSION

Protecting copyright interests are an important part of protecting business interests. For any copyright or other intellectual property protection campaign to successful, however, a business owner must understand the nature of the rights she desires to protect and take appropriate steps to cement a basis for legal claims.

The basic principle of copyright law mandates that a copyright interest in a work cannot be protected separate from the particular manner in which the work is expressed or described in a tangible form. Once a business owner has an original work of authorship to protect, then she can follow the process to assure that she has standing to pursue third parties for possible copyright infringement of that work.

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