Unlike patents or trademarks, copyright protection automatically attaches to appropriate works once they are fixed in a tangible form. This makes copyright protection particularly useful for small businesses. Nevertheless, registering a copyright with the United States Copyright Office is helpful if the need to enforce the copyright ever arises. A copyright holder cannot sue to enforce copyrights unless you have registered your copyright. Additionally, if you register your copyright before infringement occurs, you can seek statutory damages and attorneys’ fees.
In addition to formal registration, a copyright holder can utilize a copyright notice to inform the public a work is under copyright protection. A copyright notice usually consists of the copyright symbol “©,” the name of the author, and the year of publication. For example: © McBee Moore Woodward & Vanik IP, LLC 2019.
On the other hand, it is vital for small business to be aware of actions that may result in copyright infringement. According to the USPTO, “infringement occurs when a copyrighted work is “reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.” Because copyrights attach to appropriate works automatically, it may be better to assume that a work has a copyright and fully research ownership of the work before making use of the work.
Even if a work is under copyright protection, a small business may be able to use the work without obtaining permission from the copyholder under the doctrine of fair use. Section 107 of the Copyright Act provides the framework for fair use which considers the following factors when determining whether an activity qualifies as fair use:
- Purpose and character of the use (e.g., whether the use is commercial or for nonprofit educational purposes);
- Nature of the copyrighted work itself;
- Amount of the copyrighted work used and the substantiality of the portion used;
- Effect of the use upon the market value of the copyrighted work
The fair use doctrine is extremely nuanced because it is a case-by-case analysis and use of a copyrighted work should not be assumed to be considered fair use without an extensive inquiry.
Finally, a small business can avoid infringing on copyrights by using works that are within the public domain or by creating, or paying someone to create, original works.