Copyright protection is afforded to authors of original works of expression. In order to qualify for copyright protection, the work must be fixed in a tangible medium (embodied in a physical form) and must result from some minimum level of creative effort. Examples of works that are protected by copyright include novels, photographs, software, art, recorded music, movies, etc. Under copyright law, the owner of a copyrighted work has the exclusive right to reproduce the work, prepare derivative works, distribute copies of the work, publicly perform the work, and publicly display the work.
Owens Tarabichi LLP represents and counsels clients in all aspects of copyright-related matters:
- Copyright Registration. Registering your copyrighted work with the U.S. Copyright Office is an important part of protecting your work. Though registration is not a condition for protection, it provides many important advantages: (1) it establishes a public record of the copyright claim, (2) it is a prerequisite to filing a lawsuit for copyright infringement, (3) it constitutes prima facie evidence of the validity of the copyright if registered before or within five years of publication, (4) it allows the copyright owner to obtain statutory damages and attorneys’ fees if registered within three months of publication or before the infringement took place, and (5) it allows the copyright owner to record the work with U.S. Customs to protect against the importation of infringing copies. With these principles in mind, we advise you as to which works you should register, and we obtain copyright registrations for such works.
- Copyright Litigation. Copyright litigation pertains to a complicated area of the law and sometimes involves complex technology as well. In this regard, copyright litigation often centers around the following difficult, and sometimes unsettled, issues: whether the work at issue is protectable under copyright law and to what extent; whether protectable or unprotectable portions of the work have been copied; whether the accused work is sufficiently similar to the copyrighted work to constitute infringement; and whether applicable defenses, such as the fair use defense, apply. Accordingly, it is important to make both the law and the technology at issue clear and easily understandable for the judge or jury. Drawing on our significant experience in prosecuting and defending copyright lawsuits, we provide the highest quality representation to both plaintiffs and defendants in federal copyright infringement litigation.
- Acquiring and Licensing Content. Most businesses will need to use copyrighted works, such as software or digital content, for one reason or another. Therefore, it is important that your business have the right to use the copyrighted work as needed. Conversely, a company may be in the business of creating copyrighted works that it wishes to commercially exploit through licensing to third parties. In this regard, it is important to protect against unauthorized uses of the copyrighted work. When it comes to acquiring and licensing copyrighted content, there are many issues that need to be considered. Does the relevant agreement address all necessary rights to use the copyrighted work as contemplated? Does the owner or licensor actually have the authority to provide the particular rights being acquired or licensed? Does the agreement adequately describe such rights? Does the agreement contain adequate representations and warranties? As with any contract addressing intellectual property, there are many provisions specific to intellectual property law, as well as more general contract terms, that need to be addressed. We guide you through the acquisition and licensing process with a focus on protecting your rights and ensuring that you receive all necessary rights.
- Infringement and Fair Use Opinions. The early exploration of copyright issues through infringement opinions can avoid needless expenditures on developing a product or service that may otherwise infringe a third party’s copyright. Similarly, it can clarify the chances of success in bringing a copyright lawsuit or defending against an allegation of copyright infringement. Copyright infringement and the defense of fair use are complex and lack bright line rules. Accordingly, detailed fact-specific analyses are often required to provide a meaningful evaluation. By gathering all relevant information and analyzing the implicated copyrights, we provide you with the tools your business needs to make an informed decision.
- Software and Open Source. Copyright protection plays an important role in protecting software, and copyright issues arise in both the development, commercialization, and use of software. We can assist you in the development of your software by providing recommendations to avoid infringement, such using clean rooms in the development process. Except for cases of wholesale literal copying, determining whether a software program has been infringed can be very difficult. We can help you determine if your software is being infringed or if you are infringing a third party’s software by analyzing the extent of copyright protection afforded to the software, whether the software has been copied, and the applicability of the fair use defense. Such information can be used to decide whether to pursue or settle a copyright infringement lawsuit. In addition, with the advent of open source software, a business’ use or incorporation of open source software may create thorny questions regarding ownership, ability to use the underlying source code and modifications made to such code, and infringement.
- Ownership and Employment Issues. Typically, ownership of the copyright vests with the author. However, this is often not the case. For example, if an employee creates the copyrighted work during the course of employment, then the copyright may belong to the employer. Similarly, if the work was created by an independent contractor pursuant to a work for hire agreement, then the hiring party likely owns the copyright. In addition, the copyright owner may have sold or transferred part or all of his or her rights in the copyrighted work to a third party—either through assignment, license, security interest, death, or involuntarily (bankruptcy, divorce, etc.). Or perhaps a dispute has arisen between joint authors of a work. We ensure that you understand all the issues surrounding the ownership of a copyrighted work and draft and review agreements to ensure that your rights are protected.