Starting a Business in the US: Top Five Issues to Consider When Obtaining a US Copyright

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Gibney Anthony & Flaherty, LLP

As a foreign entrepreneur starting or expanding your business in the U.S., even if you are not selling literary or artistic items, you may be able to take advantage of copyright protection for advertising and promotional materials, operating manuals and packaging for your product. It is important to remember that there is no universal, international copyright that can protect your intellectual property globally. Protections against unauthorized use are unique to each particular country. These tips will help you in considering obtaining a US copyright.

Benefits of a Copyright
The  Berne Convention protects creators such as authors, musicians, poets, painters etc. with the means to control how their works are used, by whom, and on what terms. If your home coun­try is a member of the Berne Convention, no formalities are required to preserve U.S. copyrights in items created after March 1989. Certain formalities (such as a copyright notice) provide added benefits. As a non-U.S. copyright owner, you are not required to register your copyright to sue for infringement. However, if you later form a U.S. subsidiary which owns copyrightable material, registration with the U.S. Copyright Office will be necessary before your subsidiary can sue an infringer. The scope of U.S. copyright protection is driven by the date of first publication of a work. For works first published outside the U.S., the author’s nationality, place of first publication and the impact of copyright treaties must also be considered.

What Can be Protected by a Copyright?
According to the U.S. Copyright Office, any original work that is created is protected by the copyright law. The law applies to authored work that is in a material form, whether it is published or unpublished. Types of work include:

  • Literary works
  • Musical works
  • Books
  • Articles
  • Pictures
  • Graphs
  • Charts
  • Website content
  • Computer software

Top Five Issues to Consider When Obtaining Your Copyright
Issues to consider when obtaining a current US copyright:

  1. Copyright protection begins automatically upon creation of the work in tangible form and continues for 70 years after the death of the author or, for works created on behalf of an organization, 95 years after publication or 120 years after creation
  2. To be protected, a work must be original and show at least a minimal level of creativity;  protection is not available for ideas, facts and processes, but is available for the expression of ideas, facts and processes
  3. Damages for copyright infringement are the copyright owner’s actual damages plus any additional profits of the infringer attributable to the infringement, or “statutory damages” (an amount set by the court within specific monetary guidelines)
  4. To protect authors and their families, many transfers of copyrighted works can be rescinded after a set period of time, despite contrary language in the transfer document
  5. The purchase of an original work does not by itself convey ownership of the copyright in that work

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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