By: Charles Mahone II

Startups have many qualities that make them interesting and draw people into the space: innovative, risky, and even a little green. While many words could describe a startup, among the top of that list should be the word “customer.”

While it may seem strange to classify startups as customers, they routinely find themselves in this role due to the often-limited capacity businesses have at inception. An inventor with a technological innovation to revolutionize mobility has expertise in the tech, not the legal aspects of regulation or the experience to market the product effectively.

The pitfalls of startups finding themselves as frequent customers appear when a business is not intentional about securing intellectual property rights. This post will discuss for what, when, and why you want copyrights assigned.

Should I file for a copyright?

In short, yes. Filing for and being granted a copyright protects rights with little to no downside.

What should I file a copyright for?

A copyright can protect works of original authorship that includes literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

Out of this array, some common things that businesses should be sure to think about getting copyright protection for are:

  • Any artistic works that serve as a product (statutes, designs commissioned, comics, etc.)
  • Computer Code (websites, apps, etc.)
  • Jingles or songs created for and associated with the business

While this is certainly is not exhaustive, it gives some easy things to think about when embarking on a new foray within the company.

So I just file and that is it?

No! Startups often outsource different forms of labor such as design work, but when doing so often fail to ensure that the intellectual property rights of the works designed for them stay with their company. Before you file, it is important to ensure that the work you are filing for actually belongs to your company. Two areas that startups should be especially aware of are:

Employee Works

If an employee makes an artistic work within the course of their employment then the work belongs to the employers. Although this may be ample protection on its face, it may be prudent for a startup to think about how they want to write contractual terms dealing with intellectual property developed by the employees within the same product space or market that may not have been technically developed within the scope of their employment.

Works by Independent Contractors

If a work is created for a startup by an independent contractor and is designated as a “work for hire” the startup maintains the copyright over the commissioned material if, and only if it falls into one of eight categories: 1) a part of a larger literary work, such as an article in a magazine or a poem or story in an anthology; (2) part of a motion picture or other audiovisual work, such as a screenplay; (3) a translation; (4) a supplementary work such as an afterword, an introduction, chart, editorial note, bibliography, appendix or index; (5) a compilation; (6) an instructional text; (7) a test or answer material for a test; or (8) an atlas. If the work does not fall into one of the eight categories then the copyright stays with the independent contractor.

While the above eight categories can protect your rights, the more efficient route is to ensure that any agreement you sign with an independent contractor that may produce a copyrightable work has a clause that assigns any and all intellectual property rights created throughout your work together to your business.

 

What do I get for filing?

While this post encourages filing for a copyright with the Copyright Office, it is important to remember that a copyright is created the moment a creative work is affixed to a tangible medium.

Filing for the copyright and registering with the office will allow for a business to have a few privileges if accepted. The largest benefit is that it opens the door to sue if someone is infringing (i.e., using your copyrighted work without permission) with the potential to collect damages. This means that the right to exploit the copyright becomes protected through the copyright act and resides solely with the holder of the copyright (less any licensing that takes place). These rights to exploitation can take the form of reproduction, distribution, the right to create derivative works, as well as display and performance rights.

 

What if I never asked for the rights to the copyright for a work I had done?

If you never asked for the rights to be assigned to your business and you believe the copyright may lie with another entity or person, you can ask for the copyright holder to “assign” the rights to your business, thus granting you all of the protections and privileges associated. If the party assigning the rights to your business has already filed with the office for them, there will need to be an assignment through the Copyright Office as well.

Even if the rights of a particular copyright are not assigned to your company, your use my be protected under what is known as an implied license. An implied license is present when the conduct of the parties show that a license has been extended from the copyright holder to the licensee. This may protect your company if representations made have induced conduct that has not codified through a contract.

There can be many twists and turns when trying to ensure your intellectual property rights are protected, but as long as you are proactive, intentional with your contracts, and are sure to file with the Copyright Office you can protect your works.

 

Sources

Copyright Office: https://www.copyright.gov/help/faq/faq-general.html

Copyright Office: https://www.copyright.gov/help/faq/faq-protect.html

Stanford Libraries: https://fairuse.stanford.edu/overview/faqs/copyright-ownership/

US Code, Title 17, Chapter 1, Section 107-112: https://www.copyright.gov/title17/92chap1.html#107