California and Idaho startups in the entertainment, media, and advertising industries should be aware of basic information regarding copyrights.
What is copyright and what does it protect?
Copyright protects an idea once it’s been put into an expression. For example, books, sculptures, films, art, and computer code can be copyrighted. Copyright covers creative works.
1) an original work of authorship and 2) in a fixed and tangible medium or form.
Common ideas and functional inventors cannot be protected. For example, a utilitarian work, such as a sculpture of a bike rack, cannot be copyrighted.
Who owns the copyright?
The owner of the work is the creator unless there is an agreement to the contrary. The creator, rather than the company, is the default owner of the copyrighted material and the law assumes that the creator of the work is the owner, unless there is an agreement to the contrary.
There are two types of agreements which change ownership:
- An employee-employer agreement or relationship; or
- A Work for hire agreement where a contract assigns the copyrighted work from the creator to the company hiring the creator
Idaho and California startups should always ensure that contractors sign work-for-hire agreements if they will be taking part in creating an artistic work. Without a work for hire agreement, an independent contractor can claim that they are the true creators of a work.
How long does a copyright last?
From the point of the creator dies, until 70 years after the death of the creator.
For corporations, 120 years after the work was creator.
After the copyright time period expires, then the work reverts back to the public domain. Once in the public domain, anyone can use it for any purpose and will not infringe upon the copyright.
Copyright registration and Infringement
Copyrights now must be registered prior to the owner suing for infringement. In a landmark 2019 decision, Fourth Estate Public Benefit Corp. v Wall-Street.com, the Supreme Court held that an infringement suit must wait until the owner of the copyright has registered it with two notable exceptions – movies, music, and creators of other works that are vulnerable to pre-distribution infringement may sue once they pre-registering the work along with creators who seek to prevent a live broadcast which infringes upon their work.
In order to prove copyright infringement, a creator must prove:
- The other party had access to the creator’s work
- The creator’s work and the infringer’s work are substantially similar
The second element is determined by comparing the creator’s work and the infringer’s work by breaking down each into all their constituent parts.
Creators who prove infringement will be able to collect damages not only from the infringer, but also the third parties who received any benefit from the infringement or of the third party had any knowledge of the infringement through a doctrine called “vicarious and contributory infringement”.
DMCA and a Notice and Takedown Policy
All startups should implement DMCA policies on their websites. For example, hosting website which feature infringing content are subject to copyright violation, unless they fall under the Digital Millennium Copyright Act Safe Harbor Exemption.
DMCA stands for Digital Millennium Copyright Act. A DMCA notice is also known as a DMCA takedown notice or a DMCA request.The DMCA covers any copyrighted material that could be infringed on the internet, including:
- Written words, such as articles, books, poetry, etc.
- Audio files, including music
- Still artwork, including photos and other images
- Pictures that you’ve posted on your business’s social media sites
The DMCA Safe Harbor exemption applies if 1) Website is neutral to the content 2) the third party posts the infringing content 3) the website is not liable unless they become knowledge and do not remove infringing content.
Idaho and California startups should ensure their sites have a Notice and Takedown Policy to provide a method for copyright owners to request their content be removed from the site.
Websites should also provide a mechanism for counter-notice which provides a method for creators who legitimately own the alleged infringing content to state why they believe it does not infringe upon a copyright.
Defenses for copyright infringement
For Idaho and California startups accused of copyright infringement, they may be able to take advantage of a copyright defense. One defense for alleged copyright infringement is the “Fair Use” Defense
The fair use defense considers 1) the nature of the copied work and 2) the purpose and character of the work; 3) the amount of the work taken/used’ and 4) effect on the works’ value
In order to benefit from the fair use defense, a party must demonstrate that their use does not diminish the market for the creator and their purpose is different than the original work.
The other primary defense is the Parody Defense, which invoked the First Amendment and allows parties to comment or make fun of copyrighted work.