A Copyright Attorney for IP Protection
Intellectual property attorneys typically practice law in at least one of copyright, trademark, patent, and trade secrets law. A copyright attorney typically has experience in the following areas:
Misuse or Misappropriation
Due Diligence Investigations
Review, Negotiation and Drafting of Licensing Agreements
Copyright Assignments and Recordations
Handling Ownership Issues
Review, Negotiation and Drafting of Software Agreements
Drafting Work for Hire Agreements
Understanding of Fair Use Exceptions
A copyright attorney could also have experience dealing with emerging issues in digital rights management, electronic media, Internet, and cyberspace. For example, issues related to the Digital Millennium Copyright Act (DMCA) and copyright actions under eBay’s VeRO procedures.
U.S. copyright laws generally govern original works of authorship fixed in a tangible medium of expression. Copyright laws give copyright owners exclusive right to reproduce, distribute the work, and prepare or perform the work publicly. Copyright laws, however, do not protect facts, ideas, systems, or methods of operation. A copyright attorney could help assess whether their works are copyrightable or if any protection schemes are available.
A copyright attorney could also help interpret and correctly implement copyright registration procedures for works seeking copyright protection. In general, a copyright attorney could file for U.S. copyright registration at any time within the life of the copyright. U.S. copyright registration is a legal formality intended to create a public record and provide notice.
Benefits of Registration
Even though copyright registration is not a requirement for protection, a copyright attorney could explain why registration provides several advantages. For example, a copyright registration establishes a public record of the copyright claim. If copyright registration is made before or within 5 years of publication, copyright registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the registration certificate. Therefore, a copyright attorney asserting rights in a registered work does not bear the burden to prove up the registration.
Additionally, registration made within 3 months after publication of the work provides other benefits. For example, statutory damages and attorneys’ fees will likely be available to the copyright owner in court actions. In other words, in these situations, a copyright claimant could recoup his or her copyright attorney fees. Otherwise, only an award of actual damages and profits is available to the copyright owner in such actions. Copyright registration also allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. A copyright attorney could guide copyright owners on best procedures to identify and stop infringing copies from entering US borders.
Electronic Filing of Copyrights
A copyright attorney could apply for a U.S. copyright registration by paper or electronically. The U.S. Copyright Office recently implemented an electronic filing system to apply for a U.S. copyright registration. The electronic system, however, currently only handles certain applications. A copyright attorney could provide guidance on the U.S. Copyright Office’s electronic filing system. A copyright attorney will need to supply the U.S. Copyright Office with accurate information on the nature of the underlying work. Inaccurate information could invalidate the application or the copyright registration based on the application. It is advisable to have a copyright attorney prepare or at least review the application for copyright registration before filing with the U.S. Copyright Office.
Case Law on Copyrightable Creativity
Although works with some degree of creativity are generally afforded U.S. copyright registration, certain facts, ideas, systems, or methods of operation are not. Recent cases in the U.S. also suggest that the bar assessing creativity is inching higher and that judges could begin declining to grant copyright protection to certain traditionally copyrightable works.
A copyright attorney could ascertain the latest case law in a particular judicial area in order to ascertain current copyrightability standards.
Fair Use Doctrine
Rights granted under a U.S. copyright registration are not absolute and certain copyright laws limit the copyright owner’s exclusive rights. The fair use doctrine, for example, provides exceptions to copyright protection and allows certain copying by third parties for criticism, news reporting, teaching, and research. A copyright attorney could assess a given situation and opine whether a particular situation falls under the fair use exception.
Use of Copyright Notice Symbol
Copyright registration is not a prerequisite for use of the copyright symbol ©. However, if an infringed work carries the proper notice, a defendant cannot rely on an innocent infringement defense to reduce damages that the copyright owner would otherwise receive. The symbol © is an identifier placed on copies of the work to inform the world of copyright ownership. In general, the copyright notice should include the name of the copyright owner and the year of first publication (e.g., © 2006 John Doe).
A copyright attorney could provide copyright marking clarifications and clearances.
Copyright Term of Protection
Copyright registration does not generally affect the term of the U.S. copyright. The term of U.S. copyright protection can vary according to the date of creation, the date of publication, and the type of work. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, copyright protection is generally afforded for 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. A copyright attorney could provide an assessment of the term of copyright protection afforded by a particular work.
About the Firm
Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX. The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the IP law firm and its IP law attorneys may be found at www.klemchuk.com.
Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.