Copyrights and Trade Secrets

Copyright

A copyright is a form of intellectual property law that protects original works of authorship. It grants the creator exclusive legal rights to use, distribute, adapt and profit from their creative output.

Copyrights grant the right to prevent others from making, using or selling copies of the copyrighted work. Additionally, a copyright allows the creator or author to prevent others from making new works that are mere derivatives of the copyrighted work.

A copyright vests upon creation of the work in a tangible medium. That is, as soon as you have created the work, it is copyrighted automatically. However, you should consider registering your copyright to afford you added legal protections.

Registration and the ©

You are not required to publish your work or mark it with the circle C. It is advisable to add the “©” mark followed by the name of the rights holder and the year of creation as a notice to the public.

The value of copyright registrations should not be underestimated.

In the U.S., you cannot file a copyright infringement lawsuit in federal court until your work is officially registered at the U.S. Copyright Office. If you register your copyrighted work before infringement occurs (or within three months of publication), you can claim statutory damages and attorneys fees in any lawsuit to protect your work. If you register within five years of publication, a court automatically presumes your copyright is valid, shifting the burden of proof to the infringer to prove invalidity.

You can record your registration with border patrol agencies to block the importation of pirated, counterfeit copies of your work under certain circumstances.

Subject Matter of Copyright

Copyright protects original expressions fixed in a tangible form. It does not protect ideas or facts – only the way you express them.

• Literary works: novels, poems, articles, blogs; some software code
• Musical works: melodies, sheet music, lyrics, instrumental compositions
• Dramatic works: plays, screenplays, operas, skits, and any accompanying music
• Choreographic works: documented dance routines and performances
• Pictorial, graphic, sculptural works: paintings, photos, graphic designs and statues
• Motion pictures and audiovisual works: movies, YouTube videos, TV shows, video games
• Sound recordings: specific recorded performance of a song (distinct from the underlying musical composition)
• Architectural works: physical design of a building as expressed in blueprints or the structure

Stay Out of Trouble – Don’t Copy Without Authorization

Generally, you can’t copy someone else’s copyrighted work. This does not only mean that you cannot make physical copies – duplicating the work by creating physical copies, recordings, downloads, etc. It also means you need to know how you use preexisting works when creating your own derivative work.

The most legally secure route for incorporating a preexisting work into your own creation is to obtain a license from the copyright owner. The license will typically specify how you can use, alter or monetize the underlying work.

If a work is in the public domain, meaning its copyright has expired or was never applicable, you are free to use it without restriction.

The doctrine of fair use allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching or parody. Fair use is evaluated case-by-case based on four factors: the purpose of your use (including whether it is transformative or commercial), the nature of the original work, the amount of the original work used and the economic impact your use has on the original creator’s market.

Trade Secret

A trade secret can be any piece of valuable information that gives a client a competitive advantage. Protecting a trade secret requires careful planning and document preparation. Nondisclosure agreements, employment agreements and other elements must be put in place to ensure that the trade secret remains a secret.

If an employee walks out with your company documents, it may well constitute a trade secret violation. Certainly employee movement creates the greatest risk for trade secret theft and misuse. Maximize the security of your trade secrets by keeping them behind a secure firewall, logging access and changes to trade secret documents and conducting exit interviews with departing employees.

Our firm, Booth Albanesi Schroeder, PLLC, has extensive knowledge of state and federal statutes when it comes to protecting your trade secret rights. We are experienced in trade secret theft litigation and ready to assist.