Each form of intellectual property protection has a distinct set of advantages and limitations. It is important to understand these in order to identify the right type of protection for a start-up, a decision that depends in part upon the type of business being created and the type of product or service being sold.

Copyright law has many relatively low-cost advantages that start-ups may find useful for protecting their intellectual property. Copyright protection is relatively cheap as compared to patent protection, and costs are a major concern for start-ups. In fact, copyright can even be free for certain purposes; technically speaking, copyrights arise naturally from the act of creation, and as a result, as long as the requirements for copyright are met in the act of creation (originality, fixation, a lack of any idea/expression issues, non-functionality), the author automatically has copyright interests in the creation. That said, those interests do not allow authors to do even some of the most basic things, such as sue an infringing party. In order to sue an infringing party, a copyright owner must register that copyright with the U.S. Copyright Office. In addition, a copyright owner will not be able to obtain statutory damages without registering a copyright, and statutory damages are useful in procuring early settlement without drawn-out expenditures of litigation costs. The good news is that registration of a copyright is not that expensive either; e-filing a copyright costs only $35, so it’s well worth it.

Copyright also provides a much longer duration of protection than patents. Though technically speaking, copyrights must be granted by Congress for “limited times,” the Supreme Court of the United States in Eldred v. Ashcroft interpreted the “limited times” clause in such a way that allows Congress to basically extend copyrights forever. Start-ups can be sure that interest groups the likes of Disney will make sure that Congress continues to extend copyright protection indefinitely, and can reap the benefits of the expensive lobbying of bigger players. That said, those in the music industry will note the recent commotion surrounding copyright terminations, and start-up labels signing vintage artists may find themselves on the wrong side of the artists right to terminate a license, a right granted with the intention of allowing artists to renegotiate with the big labels, but which could have implications for start-ups as well. Copyright protection is also useful simply because the threshold for originality is just not that high. Courts have said that only a “modicum of originality” is required for copyright protection to attach, and even non-fiction book authors recounting historical facts will have some degree of copyright rights, though such copyright rights will tend to be substantially “thinner,” or weaker than the author of a creative, unique and distinctive fiction novel.

Finally, Copyright law itself can be used in a number of creative ways. For example, Omega watches has utilized a unique design affixed to the underside of its watches in order to prevent importation of counterfeit or even non-authorized goods into the U.S. See 17 U.S.C. 602. Such practices may test the limits of a doctrine known as copyright misuse, but can be effective in policing a company’s goods and brands.