Copyright Law Mechanics

13 December 1998

Here's a quick true or false question for you over your morning coffee. If you forget to put a copyright notice with the "c" in the circle or the word "copyright" on your written work, do you lose all of your copyright protection? The answer is false." This week's column is a primer on some copyright mechanics and related issues.

Many people think that the copyright symbol is required. I suppose that this misconception arises because before March 1, 1989, displaying a copyright notice was an important step in preventing the accidental forfeiture of a copyright.

Even today, including a proper copyright notice is a good idea. While it's not required, it offers several advantages. For one, it prevents an infringer from claiming innocence as a defense.

You might also consider promptly registering your copyrighted materials with the copyright office. If you don't register, you'll have a copyright, but you can't successfully sue for infringement until you register. At the least, this will delay the filing of your lawsuit while you deal with the registration process.

If you register within three months from the date of first publication or before the date of infringement, you can collect statutory as opposed to actual damages. The problem with actual damages is that they may be nominal or hard to prove. Statutory damages can be up to $100,000 plus attorney fees and court costs in some cases.

Copyright Notice

Now that you know that a copyright notice is desirable but not required, the next question is what should you put in the notice? You should use the word "copyright," the abbreviation "Copr.," or the "c" in a circle symbol.

In the digital world, you sometimes see "(c)" because there is no ASCII symbol (basic computer character) for "c" in a circle. You should avoid the "(c)" because there remains some legal controversy over whether "(c)" is a proper symbol for a copyright. If your software cannot make a "c" in a circle, you should use the word "copyright" or the abbreviation "Copr."

Next comes the year of first publication and not the year the author created or completed the work. You should also include the year of first publication for an original work with an updated version. This is a good idea in case the updated version doesn't contain enough change to qualify as a distinct work of authorship. Even better is if you include all years of first publication. For example, you might have "Copyrights 1995-1998 Mark Grossman."

The name of the owner of the copyright should follow the year. This can be a tricky area when you have employees, independent contractors or multiple authors. You may want to consult with your attorney on this issue.

If your work includes material created by the U.S. Government, you must include a statement clarifying what material is copyrighted by you. For example, your notice might say, "Copyright 1998, Mark Grossman, No copyright claimed in works of the U.S. Government."

Finally, to maximize your copyright protection in some other countries, you should include the statement, "All Rights Reserved."

Location of the Copyright Notice

Now that you know what the copyright notice should say, the next question is where do you put it. To a large degree, the answer is somewhat self-evident when you understand that the purpose of the notice is to give reasonable notice that you have copyrighted the work. You can and probably should put it in several places.

On the floppy-disk or CD-ROM, you should put it right on the disk. When a program starts, a nice touch is a splash screen with a copyright notice. In a Windows program, when the user goes to the "Help" menu and chooses "About [insert the name of your program]," your copyright notice should again appear along with your version information. On a website, you should include your copyright notice at the bottom of every page.

Two Myths Dispelled

The number one most common myth in copyright law that I hear is "since I paid them to create the software for me, I own the copyright." This is a fatal misconception. The general rule is that when you hire an independent contractor to create a copyrightable work for you, they own the copyright unless you have written agreement to the contrary. This written agreement is not a big deal, but you should have your lawyer prepare it for you.

The second most common one that I hear is "since it's published on the Internet, it's in the public domain." This one has no more reality than Santa Claus. A copyright protects items of original expression, including literary works, sound recordings, visual arts, and so on. A work is protected legally when it's fixed in a tangible medium of expression. When something is saved to disk, for example, its "fixed in a tangible medium of expression." The fact that it may be posted on the Net doesn't change anything. It's copyrighted, it's protected and stealing the content is a copyright infringement.

Mark Grossman's "TechLaw" column appears in numerous publications. Mark Grossman has extensive experience as a speaker as well. If you would like him to speak before your group or corporate meeting, please call (305) 443-8180 for information.

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Disclaimer: The advice given in the TechLaw column should not be considered legal advice. This newsletter only provides general educational information. You must never rely upon the advice given here. Your individual situation may not fit the generalizations discussed. Only your attorney can evaluate your individual situation and give you advice.

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