San Diego Copyright Lawyers

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What is the definition of a copyright?

Copyright is traditionally defined as the right or group of rights that come into existence once an expression is reduced to a tangible medium. This means basically that the copyright comes into existence once the author writes it down, programs the code, paints the painting, or sculpts the sculpture. A copyright does not have to be registered to exist; however, it is better to register a copyright to get all the benefits under law. The copyright has multiple sub-rights recognized by law which include: the right to control reproduction, distribution, display, performance, and the making of derivative works from the original copyrighted work. One important thing that a copyright cannot cover is the idea underlying the expression. Ideas are not protected by copyright, but are instead protected by the patent system. The notion that copyright cannot protect the idea is somewhat hard to grasp, but a simple example of this concept might be found with a love story. The idea is the love story; but this idea may take many expressions (which are covered by copyright). Romeo & Juliet is one expression, whereas Thelma & Louise or True Romance are entirely different expressions of the idea.

What types of work can qualify for federal copyright protections?

A variety of subject matter can qualify for a federal copyright One of the main qualifications is that the work be “original” to the author, It doesn’t have to be the most creative work; however, it must originate with the author. Books, screenplays, sculptures, photographs, paintings, poems, architectural works, website copy (such as this) and even software are potentially eligible for copyright There are certain types of copyright applications that the copyright office frowns on for not meeting the “originality” requirement, such as mere organization of raw data.

What are the benefits of a federal registration of a copyrighted work?

We believe that it is a good idea to register your copyrights federally for a variety of reasons.

    First, if somebody were to infringe your copyright, a federal registration is your ticket into federal court and it will allow the plaintiff to obtain jurisdiction over the subject matter.

    Second, the federal registration will often provide the owner of the copyright recourse against the infringer in the form of awards of attorney fees and rights to statutory damages. Statutory damages can be an important right, especially in situations where damages are difficult to prove against an infringer or too costly to prove.

    Third, having a registered copyright will also increase the likelihood that an attorney may be interested in taking a case on some form of contingency.

    Fourth, having a registered copyright can also make it easier to pursue counterfeiters of copyrighted work, for instance, in the case of copyrighted software. You can record copyrights with U.S. Customs, which can assist with seizures of infringing products while pursuing civil and criminal remedies. Lastly, the fees for recording copyright are very inexpensive.

What types of rights come with a copyright?

A copyright is somewhat of a misnomer, because it really represents several sub-rights which include the exclusive rights of the author to control reproduction, distribution, making derivative works, display and performance rights of the original work. Each of these rights is separately important because an infringer may only violate a few of the rights and it is nice to have options. For example, an infringer might not be making physical copies of a copyrighted work, but may be making infringing distributions of the work by displaying it over the Internet, or maybe making infringing performances of copyrighted song or movie by illicit file sharing without actually making a physical copy. It is important to know which sub-right is being violated when litigating copyright matters.

What is involved with copyright litigation?

Copyright litigation proceeds in federal courts and sometimes in arbitration settings. The most important issue in copyright litigation generally is whether the competing works are “substantially similar.” Other factors, such as whether the defendants had access to the plaintiff’s work can have a great bearing on the outcome. Based in San Diego, California, the copyright attorneys of Buche & Associates, P.C. are well versed and experienced with copyright infringement litigation.

The sub-rights of copyright are also important to understand in cases of intellectual property licensing. For example, there may be instances where an author only intends to sell or license certain limited reproduction rights, and not display rights. A graphic artist may sell an image for a small price if it is only to be used once or twice on a brochure by a single business, but may have charged much more for the right to display the same image if the work were to appear in a movie, on television, or on tee shirts sold nationwide.

What are some of the basic issues that come up in copyright litigation?

Some of the core issues that come up in copyright litigation are:

    Whether the plaintiff actually has an original work of authorship and ownership of the asserted copyrights.
    Whether the work of the defendant is “substantially similar” to the work of the plaintiff.
    Whether the defendant had access to the work of the plaintiff at the time of infringing the original work.
    The measures of damages. Most copyright infringement litigation is federal, however, in nearly every case of federal copyright infringement litigation, there are often rights asserted under state law.

For instance: There can be claims or rights of publicity and misappropriation of the likeness of a plaintiff. In some cases, there may be breach of contract issues as well. If you have a copyright infringement litigation matter, you should contact us. The attorneys of Buche & Associates, P.C. have significant experience litigating copyright matters and will aggressively protect your rights. There is no charge for an initial consultation. We are based in San Diego, California and have offices in Los Angeles, California and Houston, Texas.

We hired someone to create a work of art, but do we own the copyrights?

This is an excellent question and the answer is not always clear. The short answer is: it depends. In most cases, work that is performed by an employee in the course and scope of his or her employment will belong to the employer. However, work done off company time, which is not directly related to the business of the employer, or not done using company resources may create complicated issues and room for argument down the road. It is important to consider when and where employees will do the bulk of their work at the time they are hired if a company wants to retain intellectual property rights to work product.

If a work of art, or a website, or engineering drawings, or architectural plans are specifically commissioned as a “work for hire” then ownership of the copyright will rest with the hiring party. However, if a proper “work for hire” agreement was not executed, then the copyright ownership might actually rest with the artist who is the default author of the work. Therefore, it is very important when hiring professional artists (especially non-regular employees or contractors) to ensure that the contracts say exactly what is intended between the parties. In many cases, professional artists who work on their own schedules and using their own materials may intend to retain ownership of copyrights. The same may be true for musicians who write new music, programmers, website designers, professional photographers, architects, and engineers. If you are unclear about copyright ownership or need agreements about copyrights, it is important that you retain a qualified attorney to help you to interpret the scope of agreements and releases affecting intellectual property rights. In most instances preemptive action is far less expensive than litigating after-the-fact. If you have a copyright ownership issue, not hesitate to contact our offices. We are based in San Diego, California and qualified to answer your questions about copyright law.