A “copyright” is a form of intellectual property law which protects original works of authorship. Copyright protection applies to almost anything that is created and that you can touch and feel. This would include, for example, brochures, contracts, software, advertising, videos, drawings, forms, and even website designs. A copyright generally lasts for the lifetime of the author who created it, plus an extra 70 years.
Copyright protection does not usually apply to domain names, business names, ideas, systems, or methods of operation. You can, and should, indicate that you are asserting copyright protections by placing the “©” symbol on any materials that you create. Although use of the symbol is not legally required, it places others on notice that the work belongs to you and should not be copied or reproduced without your permission.
Make it Official?
A person’s work generally receives copyright protection as soon as it is created and placed into tangible form. In other words, my newly created video to sell doors is automatically protected under U.S. copyright laws. It can be prudent, however, for a contractor to consider filing his or her documents and other materials with the U.S. Copyright Office at the Library of Congress to obtain an official copyright registration.
The registration places the copyright on the public record and gives you a certificate of registration that can be used as a marketing tool. More important, if you need to sue for copyright infringement, having a federally registered copyright may allow you to obtain injunctive relief (forcing the bad guy to stop using your material) and receive attorney’s fees and statutory damages if you win the case. These remedies normally are not available unless the work has been registered with the U.S. Copyright Office. Statutory damages are awarded by the court, in its discretion, usually within a range of between $750 and $30,000 for each work infringed, but that limit can be raised by the court to up to $150,000 if you can prove the infringement was done deliberately. If you believe your copyrighted works are being used improperly by a competitor, you would normally consider bringing a suit for copyright infringement and/or unfair trade.
The author of the work is normally the one entitled to copyright protection, unless the work has been created as part of the person’s employment duties. In that case, the law considers the item to be a “work for hire,” and the employer would usually be considered the author for copyright purposes. This is one reason why it is helpful for contractors to place specific “work for hire” language in any agreements they have with marketing companies, advertising staff, or Web designers — so later on there is no question about who owns the legal rights to the works that an employee or consultant may have come up with.
—D.S. Berenson is the Washington, D.C. managing partner of Johanson Berenson LLP (www.homeimprovementlaw.com), a national law firm specializing in the representation of contractors and the home improvement industry. He may be contacted at 703.759.1055 or firstname.lastname@example.org.
This article is for informational purposes only and should not be construed as legal advice.