Copyright law is unusual, in that businesses frequently assume that they have copyright protection when they don’t and assume that they don’t have copyright protection when they do. It is a concept as old as the United States of America. In fact, copyright is enshrined in the United States Constitution. Article I section 8, clause 8 states, “[The Congress shall have power] [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The first copyright statute was passed in 1790. Yet, there are still many aspects of copyright law that are so obscure to the general public that businesspeople often are unaware of their potential rights and how to preserve them.

The Nissenbaum Law Group’s intellectual property law practice focuses on the means by which businesses can utilize these concepts to best effect, and therefore we try to explain the intricacies of copyright law in a way that our clients will find accessible and practical. In that regard, we have set forth below a number of myths about copyright that we keep hearing. It is our hope that by reading about these misunderstandings of the law, it will provide a guidepost for the lay-public to better person legal representation when necessary.

EXPLODING THE MYTH #1 There is no real protection offered by a “poor man’s copyright.”

Beware the so-called “poor man’s copyright.” It is an urban legend that if a business owner mails herself a copy of their website or other work (a song, literary work, picture, blog post, etc.) and thereby preserves the argument that they created a work no later than the postage mark on a sealed envelope, that they will likewise be preserving a robust copyright in it. Instead, the “poor man’s copyright” will solely help establish that it is protected as a common law copyright. It will be insufficient to maximize the right to recover damages; for that, one would need to have filed a statutory copyright. Without that federal registration of a statutory copyright, the amount of damages they can collect will be severely restricted.

What is the difference between a common law and a statutory copyright? Essentially, as soon as an expression is recorded in a tangible form (i.e. written on paper, recorded on film, etc.), there is a common law right in and to the ownership of that work. Unfortunately, this generally provides those asserting such a claim with a right without a remedy. A statutory filing generally provides just such a remedy. So the bottom line is this: forget the poor man’s copyright; instead, focus on registering your work properly with the Library of Congress’s U.S. Copyright Office.

EXPLODING THE MYTH #2 There is a major difference between a common law copyright and a statutory copyright.

The added rights and protections that inure to a registered copyright holder are significant. They include an ability to obtain enhanced damages and recoup attorneys’ fees for unauthorized use. However, an owner can only avail themselves of these protections in a dispute if the work was registered when the alleged infringement occurred.

For instance, if a company obtains the script of a film from another company and then produces the film utilizing that script without permission, it has arguably infringed on the rights of the company owning the script. The creation of a film from a script is a derivative work. Since only the copyright holder may create a derivative work without permission, this is problematic. If the script was not registered for copyright infringement when the film was produced, the script owner will generally only be able to recoup damages from lost profits. This can be very difficult to prove and/or end up being minimal. For instance, the film that the infringing company made may not have been profitable. Accordingly, there might be little damages at stake, even though the violation may have been blatant.

On the other hand, if the company had a registered copyright for the script, it could then have the ability to instead obtain statutory damages rather than be limited to lost profits. In addition, with the prior registration, the company may be able to recoup the attorneys’ fees it expends in connection with the prosecution of its infringement case. This can be the difference between the case being a viable lawsuit or not, at least from a cost-benefit standpoint.

Having said that, there are ways of seeking to reduce the damages, but those defenses are quite limited. For example, the innocent infringement defense in which the accused party asserts that they had a good faith (hence, innocent) reason for concluding that they had the right to utilize the protected work can sometimes result in a reduction of damages. However, it cannot be counted on. There are a host of technical requirements that must be successfully asserted for that defense to succeed.

The best practice is therefore to obtain a statutory copyright registration prior to any release, promotion or other distribution of a work so that it can be protected before anyone has the opportunity to infringe on the work. This should be accompanied by making sure to affix the standard copyright notice (Copyright © 2021 by ) to each such item.

EXPLODING THE MYTH #3 Complete copyright protection cannot be guaranteed by filing a simplistic template form application.

This could not be further from the truth. Filing a copyright form application is the beginning of the process, not its conclusion. It does not answer the key questions that your lawyer will presumably ask, such items as

• Are there others who may have a claim to the intellectual property rights to the work?
• Was this a derivative work?
• Is the item being copyrighted already registered by someone else?
• Is the item not copyrightable because it is in the public domain or otherwise is subject to fair use?

The important point is that simply filing a form application does not preserve one’s rights. There has to be an underlying legal analysis to determine if there are rights that can be preserved in the first place.

EXPLODING THE MYTH #4 Far more than just words can be copyrighted.

It’s not just about words. Copyrights have been provided for all sorts of original works in a tangible medium of expression. Examples of this span much more than simply the written word. They also include protecting the intellectual property inherent in everything from clothing to cartoon characters; from video graphics to musical compositions and other sound recordings. In fact, one of the more esoteric potential protected works that can be subject to copyright protections is the underlying computer code for a website, app or other digital work. This can result in the need to register two separate copyrights for what will be the same copyrighted work: a copyright for the pictures and text being digitally-represented on the platform and the underlying code that is being used to display them. It can also provide a powerful means of dealing with an alleged infringement through the issuance of a Digital Millennium Copyright Act (DMCA) takedown notice.

It should be noted that a rather difficult legal issue can arise when a developer sells the code they create for a business application, but preserves their right in the source code they use as a foundation for that application. It is similar to a workman who sells a house they build, but not the tools they use to build that house.

The larger point is that the analysis of what is and is not copyrightable goes way beyond a simple application to preserve rights in words on a page. The spectrum of items that can be copyrighted is robust.

EXPLODING THE MYTH #5 Business names cannot typically be copyright-protected.

It is surprising how often we hear our clients ask us to copyright their business name. While there are exceptions, a business name can generally be protected through the process of trademarking, rather than copyrighting. A trademark is a means by which a person or entity is identified in the marketplace. A copyright protects the expression of an idea. Those are generally two different things.

EXPLODING THE MYTH #6 An internet domain name cannot typically be copyrighted or trademarked.

Generally speaking, an internet domain name cannot be copyrighted. Instead, it should be protected through a filing with an entity such as ICANN.