Registering Copyrightable Works

Hello Aloha Startups readers, thanks for following my “Draw the Law” series. Today’s post is the first of a series of special contributory posts only for Aloha Startups. Hope you enjoy. -Ryan K. Hew

What is Copyright?

Do you know what this “©” means? Yes, that’s the copyright symbol (and today’s topic).  However, here is a harder question for you non-lawyers, do you need to have the symbol on a published work to protect it? No, ever since the United States joined the Berne Convention (which is an international agreement covering copyright) it is unnecessary to place the symbol.

Therefore, a lot of things you have watched, heard, and read on the Internet are protected by copyright and not in the public domain, even though they lack the symbol. In fact, you need not register to get copyright protection. It is automatic. All you need is:

  1. an original works of authorship;
  2. those works are fixed in any tangible medium of expression; and
  3. from which the works can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

(See 17 U.S.C. § 102)

Copyright gives the exclusive right to copy. No one else may copy your work and if they do you can sue them for copyright infringement.

Why Am I Talking about Copyright Law on a Startup Blog?

Admittedly, for tech startups, trade secrets and patents will be your likely sources of protection (which will be covered at a later date). However, if you are a developer you should know that computer software is considered a literary work just like any movie, song, or photograph. It is therefore copyrightable material.  You need only take a look at Steve Jobs to recognize people in the computer industry are just as creative as artists, musicians, and writers and deserve protection for the expression of their ideas.

Without getting too technical, copyright prevents others from copying your program, but also protects “nonliteral elements” of the program, such as its structure and design. An important court decision stated that these types of elements were only protected “to the extent that they incorporate authorship in programmer’s expression of original ideas as distinguished from the ideas themselves.” (See Computer Associates v. Atlai, 982 F.2d 693 (2d Cir. 1992)) Finally, if you are developing graphics, sounds, and appearances the program can also be protected as an audiovisual work.

Just remember that in the beginning all you have is an idea and it is best to protect it if it is going to be your source of income. This may mean using a variety of tools, such as copyright, patent, and nondisclosure agreements, to safeguard yourself from threats, such as piracy and competition.

Do I Need to Register to my Work?

No, but if you are interested in enforcing your copyright then it might be a good idea. Even though copyright protection is automatic, and you can be awarded any profits and actual damages caused by copyright infringers you gain certain benefits that make registering with the government appealing. Here are some of the advantages:

  1. establishes a public record of your ownership, this is basically a public notice saying, “hey world, I own this, so please do not copy it without asking for permission.”;
  2. registering allows you to sue the infringers in federal court;
  3. in that vein, if made before or within 5 years of publication, it gives your attorney a stronger argument that your copyright is valid;
  4. if you register within 3 months of publication of the work or at any time prior to an infringement, you as the owner is entitled to statutory damages and attorneys’ fees (that’s right your infringer will pickup your legal costs); and
  5. lastly, you as the owner can stop infringing copies from being imported by registering with U.S. customs.

If you would to learn more about copyright or any of the other intellectual property laws, like trademark, trade secrets, and patents please come to my talk at The Box Jelly, Hawaii’s First Coworking Space, next week Tuesday, October, 18 at 6:30 pm.

Until next time!

[author] [author_image timthumb=’on’]http://www.alohastartups.com/wp-content/uploads/2011/09/RyanKHew.png[/author_image] [author_info]I am a practicing attorney in Honolulu, HI helping small businesses with their transactional and compliance needs.
Contact Me Today: Web| 808.944.8400 @RKHewEsq Ryan K. Hew, Attorney At Law[/author_info] [/author]

*Disclaimer:  This post discusses general legal information, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post. If you have questions please contact me through this link.