How to protect your work
What are copyrights?
To be afforded copyright protection, a work must be both creative and fixed in a tangible medium. Ideas, facts, and processes are not eligible for copyright protection even if the author expends time and efforts into bringing such facts to light.
This is because copyright protects the form of expression, not the subject matter of the work.
For example, anyone is entitled to write his/her own novel about a woman’s love affairs set during the secession war in the US, but no one is entitled to call that woman Scarlet and have her fight to keep a house called Tara.
That would just be borrowing too much from Margret Mitchel’s’ original work Gone with the wind. Until that work falls into the public domain, permission should be obtained prior to using more than a fair use portion of the work.
What kind of works can be copyrighted?
Typically, you can copyright literary and artistic works that are unique, original, and to which you can claim authorship. Examples are:
What can I do to secure copyrights?
While copyright is automatic assuming you can prove original authorship, these simple steps will help ensure that your copyright is protected and that you can act in the event it is being infringed upon.
Are there particular steps for online works?
Here are some additional tips to protect digital work:
What is the prergistration process?
There is a preregistration process available to works that are being prepared for publication and that have a history of being infringed upon before publication.
This is often the case for movies and video games (as many people collaborate to their creation, the risk of unauthorized disclosure prior to the release increases).
A person who has preregistered a work must register the work within one month after the copyright owner becomes aware of infringement and no later than three months after first publication
What are the common copyright pitfalls?
· Using The “Poor Man’s Copyright” as a substitute to registration. This is a method that has been used to protect copyrights in which a creator mails the work through the postal service to themselves, but is NOT considered valid protection in many jurisdictions.
· Assuming registration is unnecessary. Some people wait until they are actually infringed upon to proceed with registration but this may reduce the amount of damages ultimately awarded as a result of the infringement. In the US timely registration entitles the copyright holder to statutory damages.
· Believing copyright clearance extends to rights of privacy (or right to likeness). Copyright will protect a work of authorship such as a drawing or photograph but only as to the artistic elements featured in the work. The likeness of person, her voice, her body are not protected under copyrights. They are afforded protection under rights of privacy, meaning that when you use the photograph of a person, permission from both the photographer and the person featured in the photograph are required (in the former case as part of copyrights, in the latter as part of privacy rights).
· Relying on a mere citation of the author to demonstrate fair use when borrowing on a preexisting work. Most countries allow for citation of a third party work and require in such case that credit should be given to the original author. But the mere fact of citing the author is not sufficient in itself to demonstrate fair use. Whether such use is fair is determined by courts on a case by case basis. The use is not considered fair when large portions of the work are borrowed or when the bits borrowed constitute a core part of the work. So if you use third party copyrighted material, either obtain a permission or make sure:
What concrete steps should I take to register?
Most of the work leading up to registration can be performed without the help of an attorney.
You can register your copyright by filing a simple application and depositing one or two samples of the work (depending on what it is) with the U.S. Copyright Office.
You can do this either online using the Copyright Office’s electronic eCO system), or by filing a traditional printed copyright form. The eCO system is less expensive ($35 instead of $65 for Forms). The eCo system and the paper forms can be found at www.copyright.gov.
Things get trickier when you start noticing infringements and believe those are hurting your business, or when your work is accused of infringing upon others.
At that stage, the help of an attorney becomes essential to assist you with preparing cease and desist letters or responding to notices of infringement.
Gaelle Rochenoir © Tous Droits Réservés 2015