MLM LAW -
PROTECTING YOUR COPYRIGHT

By Jeffrey A. Babener
  2002

We See It Everywhere.

In the marketing field, we see the term "copyright" everywhere, but few marketers and few consumers really know what it's all about.  Everyone seems to know that the term denotes a special property right, but exactly what?

Some people confuse copyright with trademark or patent rights, which are entirely different.  Patent rights protect inventions and trademarks protect the mark or logo that is associated with a product or service.  Copyright on the other hand is associated with "original works of authorship."  This may take its form in countless methods of expression, for example, books, magazines, motion pictures, musical works, computer programs, CD-ROMS, photographs, drawings and paintings, greeting cards, jewelry, toys, fabrics, video games, ad infinitum.

So What Is A Copyright?

Unlike patents, which are specifically protected by patent laws, our system of laws which has its origins in the English common law, have always granted "common law copyright" rights to the authors of original works of authorship.  The U.S. Government has gone beyond this, however, and codified copyright rights, together with additional statutory rights under U.S. copyright laws, which protect the authors of "original works of authorship," including literary, dramatic, musical, artistic, and other intellectual creations.  The protection is available to both published and unpublished works and, under the 1976 Copyright Act, the owner of a copyright has exclusive right to do and to authorize others to do the following things:

*     To reproduce the copyrighted work in copies or phonorecords;

*     To prepare derivative works based upon the copyrighted work;

*     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;

*     To perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

*     To display the copyrighted work publicly, 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; and

 *     In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Who Obtains The Copyright?

Remember, copyright protection does not protect a new idea.  It protects a "work of authorship."  Copyright protection exists from the time a work is created in fixed form.  The copyright work exists immediately and becomes the property of the author who created the work.  One important thing to note is that publication is no longer the key to obtaining federal copyright as it was under the Copyright Act of 1909.  Before 1978, federal copyright required the act of publication with a notice of copyright.  Today, the copyright exists from the time the work is created in fixed form. 

And, several categories are plainly not eligible for federal copyright protection.  The following are categories that federal copyright laws will not protect.

*     Works that have not been fixed in a tangible form of expression.

*     Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.

*      Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.

*      Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).

Of use to the general public is the U.S. Government position on copyrights for works by the U.S. Government.  Works by the U.S. Government are not eligible for U.S. copyright protection and may be freely utilized.

Copyrights Last A Long Time.

The point of U.S. copyright laws is to reward authorship and creativity.  Therefore, once a work is created (fixed in tangible form for the first time), it is automatically protected from the moment of its creation for the a period of an author's life plus an additional 50 years after the author's death.  If a third party hires an author to create material (a work for hire), it is protected 75 years from publication or 100 years from creation, whichever is shorter.  Of course, individual authors can transfer or assign their copyright rights and the purchasers of those rights will be protected.

Giving Notice Of The Copyright.

Today, the notice of copyright is no longer required under U.S. law, but it is highly recommended for purposes of giving notice to the world of a claim of copyright.  The best way to do it is as follows:

 1.         The symbol (the letter in a circle), or the word "Copyright" or the abbreviation "Copr."; and

 2.         The year of first publication of the work; and

 3.         The name of the owner of copyright.

                                                         Example: 1997 John Doe

There is no magic place to affix the notice of copyright, but it should be given in a way "to give reasonable notice of the claim of copyright." 

Filing A Copyright Registration.

Again, copyright registration is not a condition of copyright protection.  But, the U.S. Copyright Office will tell you that there are other advantages to filing a copyright registration with the U.S. Copyright Office:

*     Registration establishes a public record of the copyright claim.

*     Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin and for foreign works not originating in a Berne Union (an international copyright treaty) country.

*     If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

*     If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions.  Otherwise, only an award of actual damages and profits is available to the copyright owner.

*     Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.

How To File A Copyright.

If you wish to file a copyright, you can obtain the copyright application forms over the Internet or from the Copyright Office or by requesting them from:

Library of Congress
Copyright Office
Publications Section LM-455 101
Independence Avenue, S.E.
Washington, D.C. 20559-6000

To register the copyright, send the application form with filing fee and nonreturnable deposit of the work to:

Library of Congress
Copyright Office
Register of Copyrights
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000

Who may file the application form?  Well, several different parties are eligible to file, including the author, the organization that hired the author in a "work for hire" situation, the purchaser of copyright rights, or authorized agent for the author.

Of course, it is illegal for anyone to violate the copyright rights of the owner of a copyright and violators are subject to lawsuit for injunction and damages.  There are a few exceptions, however, that are complex subjects in themselves.  One exception is "fair use," where under appropriate circumstances, brief excerpts "of copyrighted works may be used in other publications."  In some other instances, there may be a "compulsory license" in which certain limited uses of copyright works are  permitted upon payment of specified royalties and compliance with U.S. statutory conditions.

Work Made For Hire.

As a general matter, the copyright belongs to the individual author who created the work.  However, in our economy, works are often created by authors in the scope of their work for third parties, which is often referred to as a "work for hire."  Although normally the copyright belongs to the author who creates the work, in the case of works made for hire, the employer and not the employee, is considered to be the author.  Per agreement of the parties, the "work for hire" product will belong to an employer or a third party.  The U.S. copyright statute defines a "work made for hire" as:

"*(1)     a work prepared by an employee within the scope of his or her employment; or

"* (2)    a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made or hire...."

A Creative Future.

The purpose of copyright laws is to foster and reward creativity.  Sometimes it is a complex subject, but common law and statutory copyright laws are essential to providing the incentive to our most creative citizens.


Jeffrey A. Babener
Babener & Associates
121 SW Morrison, Suite 1020
Portland, OR 97204
Jeffrey A. Babener, the principal attorney in the Portland, Oregon law firm of Babener & Associates, represents many of the leading direct selling companies in the United States and abroad.

www.mlmlegal.com

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