Small business owners need to understand the fundamentals of business copyright law to prevent infringement and ensure their assets are adequately protected. I am not an attorney; therefore, please consult a qualified legal professional for advice.
Copyright for small businesses covers original creations in documented form, including:
These are examples of the most common types of copyrighted materials a small business might encounter; however, small business copyright protection extends to an enormous spectrum of creative works.
There are situations in which a business owner cannot obtain a copyright for the material their organization creates.
First, it’s important to understand who owns the copyright of the work produced. Generally, the person who creates the work is the copyright owner; however, it is standard policy for employers to own the copyright for the work that employees create.
However, this does not automatically apply to independent contractors. Contractors will own the copyright to their work unless there is a “work made for hire” agreement in place. Your contracts must address small business copyright ownership to ensure protection.
Not every type of work is protected by copyright. For example, you would not copyright a business name. Names, slogans, titles, and short phrases are protected by trademark instead, which is an entirely different process. Ideas, concepts, and systems of operation are also not automatically protected, nor are intangible works such as speeches that are not recorded.
Copyright protection automatically exists once a work is created, regardless of whether you register the copyright. However, there are significant benefits to registering your small business copyright with the U.S. Copyright Office.
First, it creates a public record of your ownership. This alone is enough to deter copyright infringement in many cases. If infringement does occur, the registration serves as legal evidence of your copyright. In general, you cannot file a small business copyright infringement lawsuit unless you have registered your work.
As long as you register your work within three months of its creation, you will be eligible to receive statutory damages in court if infringement does occur. Registered copyrights give you greater leverage in negotiations and are also necessary in some cases for international protection.
The first mistake is to confuse trademark and copyright. While copyright protects creative works, a trademark protects brand identifiers, including logos, business names, slogans, taglines, and other distinctive elements that identify a brand.
Although the artistic design of a logo can be copyrighted, its use as a brand identifier falls under the trademark umbrella. The registration process differs, as does the legal process for addressing infringement. Please don’t assume your brand identifiers are protected by copyright when they are not.
The second mistake is to misunderstand the concept of fair use. Copyrighted works can be used by others in a limited capacity, known as fair use, so long as their use is transformative in nature. Parody, commentary, and criticism are considered fair use.
In terms of avoiding infringement yourself, it’s better to be safe than sorry. Make sure any assets you incorporate into your business and branding are licensed for commercial use. There are websites offering free stock photos, video footage, and royalty-free music; however, it is essential to double-check the license before using them in your content creation.
To learn how to protect small businesses from copyright infringement, the first step is to verify that actual infringement is present. Some use of copyrighted material does fall under the umbrella of fair use, as described in Section 107 of the Copyright Act.
Once you have determined that your copyright has in fact been violated, you have a few options available. The first option is to contact the offender and try to resolve the situation amicably. I think you will likely need to provide evidence that you own the copyright to proceed.
If this doesn’t work, sometimes having a lawyer send a cease and desist is enough to resolve the situation. If not, you may need to consider taking the offender to court.
Copyright lawsuits must be filed in federal court, which will allow you to pursue monetary compensation in the form of statutory damages (up to $150,000 per infringement for willful small business copyright infringement) and recover attorney’s fees, rather than having to prove actual damages.
Because of this, it’s worth pursuing copyright registration overall for additional protection and peace of mind. If you do need to take legal action against small business copyright infringement, you can rest assured knowing that the law is on your side.
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Coach Dave
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