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Articles & Cases
| 09/21/2005 |
Protecting Copyrighted Works |
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PROTECTING COPYRIGHTED WORKS
LICENSE, DON'T SELL, CREATIVE WORK
Your best protection is to register all creative works of authorship with the Copyright Office. The Copyright Act gives authors the right to license work (i.e., temporarily permit the right to use it in some way) an infinite number of times and ways, so long as one license does not conflict with another. A written document (i.e., the "license") is required, and it should place limitations on where the work can be reproduced, performed, or displayed, the number of times the work can be used, the area of distribution, reproduction size, and so on. A very simple license statement can look like this: "The illustration of horses, number 589-4, may be used one-time only, in North America, 1/2 page, in the June issue of Horse Magazine." Note, however, many license statements must be far more detailed and specific.
If an author sells a work it should only be a copy, if possible, with the author retaining the exclusive copyright rights in the work. Unless otherwise specified in a contract of sale, the owner of a physical work may do many things to it, even resell or destroy it. If copyright has been retained, however, the exclusive rights of the copyright owner may not be infringed. [See COPYRIGHT] A licensee does not possess any ownership rights in a work and may exercise only those privileges extended by the copyright holder whether or not a work is a copy. Doing anything more may make the licensee liable for damages or copyright infringement.
WORDS ARE IMPORTANT
When talking about licensing work never use the words "sell," "sale," "sold," or other words that indicate transfer of ownership rights. Similarly, do not use the words "lease," "lend," or "rent," as they are not proper legal terminology. Doing so only creates confusion and mistaken impressions. Get in the habit of saying "license," such as "you are licensed the rights to perform my play...."
CREATE A PAPER TRAIL
Many authors are reluctant to document transactions involving copyrighted work, and often try to justify their inaction by claiming their clients will only work on a handshake basis. This can be disastrous. Businesses often cut expenditures, and contact persons leave firms and even die. What better way to get out of something than by claiming no agreement exists. All clients have documents signed on their behalf every day, for all kinds of operations, even for the delivery of paper cups. Every client will sign your paperwork, but only if you present the documents with confidence. Simply say, "please sign this, my accountant (or lawyer, or business partner) requires it." If they refuse, you better consider why and what the ramifications might be for you. Do you really want to lay out hundreds or thousands of dollars for another firm with no more than an oral agreement or handshake about payment and how your work may be used?
Document every transaction involving creative property by using job confirmations, work delivery memos, invoices, and licenses, with terms and conditions that limit the rights you are offering and that reserve all other rights to you. Include the same license statement (see example above) on all client correspondence.
WORDS, AGAIN
Be careful about modifying terms and conditions language on your forms; you may inadvertently damage your ability to enforce your rights or collect amounts that are owed to you. Also, be careful about using a sample form or adopting any terms and conditions language until it has been reviewed by a lawyer, licensed in your state, who is knowledgeable about copyright and licensing.
David can prepare or review forms, and draft contracts, at minimal cost, as well as help you enforce your rights.
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