How to Copyright Your Work: Four Essential StepsStartup Law ResourcesIntellectual Property
Copyrighting your intellectual property (IP) is an important step to protect your software code, website designs, literary works, and other important items. 5 min read
Copyright is an intellectual property (IP) right recognized by U.S. law that protects original works of authorship, such as literary, dramatic, musical and other creative works. Copyright not only covers artistic products, such as novels, paintings, movies and songs, but also business-related works, like software code, architectural plans, website designs, training manuals and marketing reports.
Copyright does not protect facts, ideas, systems or methods of doing things, but it can protect the way such things are expressed in writing, through sound or visually.
Copyrights differ from trademarks, patents and licenses. Each provides for a different form of IP rights protection. Trademarks concern words, phrases, logos, designs, etc. that differentiate the source (manufacturer, for example) of a good or service from goods and services produced by other sources. Patents protect inventions and their designs. Licenses transfer, by way of contract, IP rights from the owner of the rights (the Licensor) to a third party who wants to use them (the Licensee).
Why is copyright important?
Copyright gives the creator (the “author” under copyright law) the exclusive legal right to reproduce (for example, print or copy), publish, perform, display, film or record the creative content, and to authorize others to do the same. It also gives the creator the right to create “derivative works” from the original creation. For example, only the author has the right to update, revise or condense the work, or to sell only portions of it. Copyrights last for a term equal to the author’s lifetime plus 70 years. If the owner is a company and not a person, the term is 95 years from the date the work was first made public.
With a business copyright, you can:
Prevent others (infringers) from copying it in an effort to compete with you.
Use it to generate revenue by directly selling copyrighted products and services, or by licensing the copyright to others in exchange for royalties.
Build joint ventures and alliances with other companies to combine your intellectual property with IP owned by your strategic partners.
U.S. Copyright protects works in the United States as well as in the approximately 170 nations that are signatories to the Berne Convention.
Steps required to copyright your work
1. Create your work.
In most countries, including the U.S. and U.K., the legal rights associated with copyright arise as soon as you create work in a tangible form that someone can see, hear or touch — either directly or through a machine (such as a computer). You should retain some record or proof of the date you created your work in case a challenge to your claim to the rights is made.
2. Get agreements from your independent contractors.
If your employees helped create the work as part of their job duties, copyright law provides that any rights they might otherwise have as an “author” are automatically transferred to the company as "work made for hire". It is still a good idea, though, to have your employees sign an agreement confirming that your company owns any and all IP rights to works they produce on the job.
The law treats independent contractors (such as consultants) differently when it comes to copyright. When non-employee independent contractors produce creative work for your company, the contractor automatically retains the IP rights to that work unless there is a written agreement that makes clear that the work is “work made for hire” and your company retains the rights (i.e., copyright) to it. Be sure that work-for-hire provisions are included in all of your service agreements and engagement letters with contractors and consultants who create such things as software, websites, prototypes, advertising, reports or manuals for your company.
3. Mark your work with a copyright notice
Although not required by law, a copyright notice on your company’s work is useful. It puts the world on notice that you consider the work protected by copyright, and prevents potential infringers from successfully arguing in court that the copying of your work was an innocent mistake. Copyright notices should be placed in a prominent place on the work, and must include these three elements:
The “©” symbol, or the word “Copyright,” or the abbreviation “Copr.”
The year the work was first published.
The author’s name.
Phrases such as “All rights reserved” are optional.
4. Register your work
Although not required by law, registering your company’s significant copyrighted assets with the U.S. Copyright Office is almost always a good idea. Registration requires the filing of a completed application form, payment of a nonrefundable filing fee, a non-returnable deposit, and a copy or copies of the work being registered with the Copyright Office. If you are registering software code that contains trade secrets or other confidential information, there are rules for removing that sensitive information from the copy to be deposited. Copyright registration can be done by mail or online using the Copyright Office’s eCO system.
Copyright registration affords your company several benefits:
It provides a public record of your copyright claim.
It allows you to bring an infringement claim in court (unregistered copyrights of U.S. works cannot be enforced in court).
If registration is made within five years after your work’s publication, a court will presume the copyright is valid and the statements made in the registration are true.
If registration occurs within three months after publication or before your work has been infringed, you can seek automatic damages for infringement, as provided for in the U.S. Copyright Act (in other words, you don’t need to prove damages) in any court claim, as well as payment of your attorneys’ fees by the infringers.
The Poor Man’s Copyright
“The poor man’s copyright” refers to the practice of making a copy of your work, placing it in a sealed envelope and mailing it to yourself under the mistaken belief that, by doing so, the work is then protected in the same way as registration with the U.S. Copyright Office. This is simply not true. The additional protections of copyright registration can only be gotten through the U.S. Copyright Office process.
Are there works that you can’t copyright?
Yes. Certain materials are considered so commonly used that they should be available to everyone and therefore not restricted by copyright, including:
Titles of works (songs, movies, plays, books, etc.), names, slogans and short phrases.
Common symbols or designs.
Variations of typefaces, lettering or coloring.
Lists of ingredients or contents.
Information that is common property and contains no original authorship (such as calendars, height/weight charts, tape measures/rulers, and lists or tables taken from public documents).
Support for copyright protection
If you decide that you need help copyrighting your company’s works, you should post your legal need on UpCounsel's marketplace. UpCounsel screens out 95 percent of lawyers to provide only the best lawyers from top law schools, such as Harvard and Yale. UpCounsel lawyers have an average of 14 years of practice experience, and have provided legal services to many large companies, including Menlo Ventures, Airbnb and Google.