Austin Patent & Trademark Attorney
Frequently Asked Questions
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What does copyright law protect?
Copyright laws are used to protect works of visual art, websites, books, music, video/board games, literary works, film, software, sculpture and even architectural drawings. The copyright laws were designed to protect the expression of an original work of authorship. A copyright entitles the author to prevent others from unauthorized reproduction, distribution, display, performance, and creation of derivative works from the original copyrighted work.
Do we have protection for a copyright without registering? How do we register a copyright?
There are protections under law for unregistered copyrights, but there is a difference between a registered copyright and an unregistered copyright. Initially, a copyright comes into existence automatically from the moment an author “reduces the work to a tangible medium of expression.” In other words, copyright exists the moment when the work is created. For a painter, this could be when brush is put to canvas. For a photographer, this could be when the photographer takes the photo. Registration is merely the process of submitting copies of the work of art to the United States Copyright office with appropriate forms filled out for registration. It is preferable to have a registered copyright as opposed to an unregistered copyright for a variety of reasons. These include the availability of statutory damages and an enhanced likelihood of recovering attorney’s fees from pursuing infringers.
Are copyright infringement and counterfeiting the same?
They can be the same in some instances. However, counterfeit is a term that is usually reserved for the most egregious forms of copyright infringement. Copyright infringement, on the other hand, is not necessarily counterfeiting. Counterfeit refers to fakes and usually involves placement of counterfeit marks on goods. Copyright infringement means there could just be a “substantial similarity” between the works of the plaintiff and defendant. In most cases, copyright infringement is a civil matter handled in federal court, whereas a counterfeit case can involve civil or criminal justice systems.
What do we do if we received a cease-and-desist letter about copyrights?
You should contact an attorney immediately who is familiar with copyright infringement litigation. If you have a litigation matter, do not hesitate to contact our firm for a free consultation. Do not contact the person who sent you the letter or filed the lawsuit without having suitable representation.
What are the issues with copyright infringement litigation?
The primary issue is whether the defendants work is “substantially similar” to the work of the plaintiff. In many cases, there may be questions as to the true authorship and originality of an alleged copyrighted work. There are usually important issues about whether the defendant had access to the plaintiff’s alleged copyright work and whether infringement was willful—which can trigger enhanced damages. Assuming there is a clear-cut case of liability for copyright infringement, there can still be a variety of issues regarding the proper measure of damages.
What is a work for hire?
If a work has been specifically commissioned for one person or business, it may be what is known in copyright law as a “work for hire.” In the case of a work for hire, ownership of the copyright will actually rest with the hiring party instead of the author of the work, so it is important to clarify business relationships. A work that is created by and employee in the course and scope of employment will also usually belong to the employer.
If you need to commission a work of art, website, engineering drawings, or if you are being asked to sign a work for hire agreement, you should consult with an attorney familiar with copyright law so that you understand your rights. Work for hire laws will apply to all sorts of creative specialties such as website designers, graphic artists, photographers, and computer programmers who develop code.
If you have an intellectual property matter that you would like to discuss with the attorneys of Buche & Associates P.C., please do not hesitate to contact us for a free consultation.