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Copyrighting

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The owner of a copyright has the right to reproduce a copyrighted work, prepare derivative works based upon it, distribute copies of it and publicly display or perform it. If the work is a limited-edition work, the owner has additional rights. While copyrighting provides some protection for a business’ assets, it is not always the best form of protection for certain assets.

Copyrightable Subject Matter

Copyrighting is intended to provide protection for original works of authorship. This includes literary works, musical works, graphic works, architectural works and other forms of artistic expression. A common-law copyright is created as soon as the work is “fixed” in tangible form. However, many small-business owners fail to understand the nuances of copyright laws and assume their copyrighted work is better protected that it actually is. Further, although a common-law copyright is created when the work is fixed, registration of the copyright is a prerequisite for enforcement.

Underlying Ideas Not Protected

Copyrighting protects only the expression of an idea, not the idea itself. For example, if the author of a book describing how to practice a certain process obtains a copyright on the book, no protection of the process described in the book will result from the copyright registration. The copyright protects the way in which the process is described, not the process itself.

Copyright Infringement

A copyright protects against only actual copying of a work. To establish copyright infringement, one must prove not only ownership of a valid registered copyright but also the fact that another person copied it. If the defendant independently created the work, he or she is not liable for copyright infringement.

Fair-Use Exception

A copyright also can be permissibly used for the purposes of criticism, comment, news reporting, teaching scholarship or research. The courts have yet to come up with a clear test for determining exactly what fits into this exception, but they consider whether the use is commercial, the nature of the copyrighted work, how much of the work was copied and the effect of the use on the market.

Recovery May Be Limited

The copyright owner is entitled to actual damages and profits or statutory damages for infringement, along with attorney’s fees, and also could obtain an injunction, seizure and impoundment of infringing articles. If registration occurs within three months after publication of the work or before infringement of the work, the copyright owner is entitled to seek statutory damages, which means that he or she will not be obligated to prove actual damages and profits in order to recover. Often, however, small-business owners fail to register their copyright until there is a problem.

Alternatives

In many cases, trademarks may be obtained to protect the work, which do not require actual copying and are of infinite duration as long as they are still being used. Documents that are copyrighted also could be held as trade secrets. Trade secrets and trademarks are not subject to the fair-use doctrine, although to prove trademark infringement, there must be some confusion as to the source of the goods of an affiliation.

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