Copyrights

A copyright is a bundle of exclusive rights of an author relative to a work which he, she or an employing company has created.  The exclusive rights include making copies, distributing copies, publicly displaying the work and creating derivative works based on the work.  A “work” has a broad definition, and includes literary works, pictorial, graphic and sculptural works, music, photographs, motion pictures, sound recordings and other things.  A “literary work” has been stretched to include such things as computer software listings.  Perkins IP performs the following services relative to copyrights.

Registration.  In the United States and in most foreign countries, registration is optional rather than mandatory, but in the US certain important advantages accrue to an owner of a registered copyright.  Registration is very inexpensive in comparison with the economic effect it has on enforcing a copyright against a person who commenced infringement after the effective date of the copyright registration.  We therefore recommend registration for those works that are likely to be copied by unauthorized persons.

Assertion.  When a substantial portion of a work is copied, distributed or publicly displayed by an unauthorized person, usually this will constitute an act of copyright infringement.   Perkins IP has the ability to file a copyright infringement action in federal district court to enforce the copyright owner’s rights.  We also routinely issue “takedown” letters under the Digital Millennium Copyright Act (DMCA) to cause web hosts to remove infringing material from the sites they host.

Defense.  When a copyright owner asserts a copyright claim against a client, several issues should be investigated, such as who owns the copyright, whether it is registered, whether what happened is really an infringement, whether the accused work was independently created rather than copied, and whether there is some legally sufficient excuse or privilege for using the copied material (such as “fair use”).  We will advise the client about the strengths of his defenses and recommend a course of action based on them.

Licensing and transfer.  A copyright is an item of intangible personal property and can be assigned, licensed or made the subject of a security interest. Sometimes there is a question of who owns the copyright to begin with; for example, works made for businesses by employees are “works made for hire” whose copyright is automatically owned by the employer, but works made by independent contractors (such as many photographers and software developers) are not.  Computer software traditionally is protected by a combination of trade secret and copyright law, and copies typically get distributed by license rather than sale.  Perkins IP has in-depth experience in drafting and negotiating agreements in this area, from complex, custom software development agreements to shrink-wrap and click-through agreements.