CopyrightBy Thomas J. O’Connor

That is a common question, but it is often the wrong question. If something is “copyrightable” it is already copyrighted. But doesn’t one have to put a copyright notice on it or file something? There may be reasons to do either or both of those things, but you do not have to do them in order to have a protectable copyright.

The better questions are: (1) what is protected by copyright? (2) what steps should I take to make sure I own the copyrights on my stuff? and (3) who owns the copyright?

What is protected by copyright?

The Federal Copyright Act says that copyright protects “works of authorship.” Here are some examples of what copyright protects: (1) Writings; (2) Drawings; (3) Software; (4) Sculptures; and (5) Photographs.

And here are some examples of what is explicitly NOT protected by copyright: (1) Single words or short phrases; (2) Ideas; (3) Compilations of mere facts; (4) Works that have no originality at all; and (5) Works that have entered the public domain.

At first glance this seems quite clear, but in practice, it is often very complicated. For example, the line between unprotectable ideas or statements of fact and protectable writings about those ideas and facts can be blurry in practice. And then there is the concept of “fair use” that permits copying of works in certain circumstances like commentary or satire.

At first glance this seems quite clear, but in practice, it is often very complicated. For example, the line between unprotectable ideas or statements of fact and protectable writings about those ideas and facts can be blurry in practice. And then there is the concept of “fair use” that permits copying of works in certain circumstances like commentary or satire.

What should I do to protect my copyright?

Because of limited space, I will only list two things to do. The most important task is to make sure that you own the copyright. See part C, below.

Ironically, the next thing one should do usually has no legal effect. Because of an international copyright treaty, it is no longer necessary to put a copyright notice (© 2013 by ABC, Inc.) on your work. But it is usually still a good idea to do it. When protecting a copyright (or any other intellectual property) the primary goal is to keep others from taking your work, not to get a right to sue them. By putting a copyright notice on the work, one gives the world notice that you are claiming a copyright, you are reminding them that copyright exists and that you take this seriously. It is a polite threat and it will deter most people from stealing your work.

Who owns the copyright?

The simple answer is that the author owns the copyright unless he, she or it has assigned it away. But this just begs the question of who is the author. In general, the author is the individual who wrote the book or took the photograph or wrote the software code. But there is a rather large exception to that general rule called the “work-for-hire” doctrine.

The first part of this doctrine says that if a person is an employee of a company or another person, and the work is created within the scope of employment. Again this seems simple, but whether one is an “employee” for the purposes of copyright law can be difficult to answer because just calling someone an employee does not necessarily do it.

The second part is more complicated. Even if the writer is not an employee, the work will be a work for hire and the person who commissions the work will be the author if there is a written agreement saying that and if it is a work specially ordered or commissioned for use as: (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, or (9) an atlas.

This work-for-hire doctrine leads to one of the most common misconceptions about copyright ownership. Many people believe that if a company or person pays for a work to be done, that company or person owns the rights to that work. But that is not the case unless it meets all the terms of the “work-for-hire” doctrine.


For further information regarding these matters, please contact Mr. O’Connor at 248.740.5691 or click here to send an email.

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