Do you own the copyright to your website? How about your logo? Do your employees write articles or blog posts for you? Do you understand what your rights are to these creations? Do you own them so that they are truly business assets?
As a business owner, you must consider copyrights. Most people think of copyrights relating to books and other publications. While words can certainly be copyrighted, any form of expression in a tangible medium can be copyrighted. In the U.S., a copyright protects the creator of original works. The creator owns the copyright (with a few exceptions I’ll mention below).
So, what does this have to do with business? Everything! You create in your business every day. As you develop and create things in your business, you are building business assets. This includes more than you may think. Your intellectual property assets can be quite valuable. Just to name a few, these could include: business processes, checklists, marketing materials, articles, websites, diagrams, photographs, and manuals.
As you develop these materials, your business becomes more valuable in the marketplace. So how do you know if you are protecting your intellectual property assets? I’m just going to focus on copyrights for this article, but there are several other categories of intellectual property that businesses should protect as well.
As I mentioned above, the creator owns the copyright of his or her creation. Copyright protection happens the instant the creation is made. There are additional rights that can be gained by registering a copyright with the US Copyright Office, but registration is not required. There are also certain rights that can be gained by using a proper copyright notice, but you must be careful because there are rules for using this notice.
As business attorneys, we see several ways small businesses get wrapped up with copyright issues. The first is what we mentioned above – when you create for your business and want to protect the creation. But what happens if you, as the business owner, are not doing the creating? What if your employees are creating? Or what if you hire someone to create for you? Like a marketing company or a graphic artist?
There are some exceptions to the rule that the creator owns the copyright. One of those exceptions relates to employees. For creations by an employee that are made in the course of his or her employment, the copyright is owned by the employer. There are some guidelines to follow to make sure that the employee is acting within the “course of his or her employment” so that the exception is applicable.
One of the other exceptions relates to the people you hire. If you hire an independent contractor to make a creation for you (for example, a website) then there is an exception available called “work for hire”. The Work for Hire Doctrine only applies if there is an agreement in writing that is signed by you and the independent contractor stating that it is “work for hire”. And even then, the doctrine only applies to certain types of creations, so it is a limited exception.
If the Work for Hire Doctrine doesn’t apply and you want to make sure that you own the copyright to the creation made by an independent contractor, there are other ways we can accomplish this. All of these ways involve an agreement in writing.
So, what is the bottom line for small business owners with copyright concerns? Here are some guidelines:
1. Pay attention to what you and your employees are creating for your business. Consider these as assets and treat them as valuable. Make a plan to protect them.
2. Make sure you have written agreements with independent contractors who are creating for you. These written agreements need to be signed by both parties and have the appropriate legal language necessary to transfer ownership to you.
3. Consider adding the copyright notice to your creations, if it’s applicable and appropriate.
4. For some of your most valuable creations, consider filing a copyright registration with the US Copyright Office.
Intellectual property rights can be confusing and they are full of rules. If you need help or want more information, you should talk to your business attorney about the best course of action for your particular business.