SUB CATEGORIES OF IP

Of the several intellectual property protections available to tech startups, copyright protection is perhaps the cheapest and easiest protection to obtain. Copyright protection is obtained naturally, i.e. federal or state registration is not required in order for copyright rights to attach. That said, federal registration is useful for a number of reasons.

Although people talk about having a single “copyright,” the possession of a copyright actually denotes what has been referred to as a “bundle of rights,” each of which are laid out separately in the Copyright Act at 17 U.S.C. 106. These rights include the right (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. While not every single one of these rights will be relevant to every copyright, e.g. right of public performance has no relation to visual works, it is important to understand that a number of rights will attach to each copyright depending upon what type of work the author has protection over.

In the corporate context, obtaining a copyright may require consideration of certain issues such as joint authorship or works for hire. Joint authorship will be found where more than one author has made substantive and creative contributions sufficient to rise to the level of joint authorship. This is generally a fact-intensive inquiry that courts engage in, and guidance on whether or not a person is a joint author will most readily be found in the case law relating to a particular kind of work. That said, contracts are useful in delineating the boundaries of who owns and who does not own a particular copyright. The same goes for works for hire; often companies will employ independent contractors or employees responsible for the creation of content subject to copyright protection. In such cases, it is important for the corporation to require the independent contractor or employee to sign an agreement that lays this out expressly in writing. While contractors typically will sign a work for hire agreement, employees will usually be covered within the scope of an employment contract that contains a comparable work for hire provision.

Federal copyright registration is not necessary to have a copyright, but it is necessary if an owner seeks to enforce it, and also to seek statutory damages under the Copyright Act. An owner will need to register a copyright before the infringement occurs in order to take advantage of statutory damages under the Copyright Act, while suing in federal court only requires registration pre-lawsuit.