Copyright is one of the most important intangible rights. It can be easy and inexpensive to register, which offers the owner a presumption of ownership and the right to seek attorneys' fees and statutory damages! These rights can make the difference between a quick settlement and a long drawn out lawsuit.
It's always easy to get an infringer to quit infringing and pay at least nominal damages when your copyright is registered. If you or your business is creating "works of authorship" that can include almost any original creative work, then you or your business should learn how to protect it. The copyright office website is a good place to start with helpful educational materials and videos at www.copyright.gov and it's all free.
Own Everything
One think that you can't get for free, however, is a quality work made for hire agreement.
Bottom line, every business owner needs to make sure that his or her company owns everything of value created for it, and copyrighted works add tremendous value, especially for creative and innovative businesses.
When it comes to ownership of copyrights, there is only a narrow exception for employees that are working within the scope of their employment. If your company can prove this, then the copyright in the creative work belongs to the company. Otherwise, your company does NOT own the copyright in creative works...
... and someone else does! That's a disaster waiting to happen.
Even if an employee is creating something for your business, a well drafted work made for hire agreement will make it easier for your company to prove its authorship of the creative work as a work made for hire.
Unless your company has a valid written agreement that expressly provides for transfer of ownership in the copyright or a detailed employment agreement and job description, your company probably doesn't own copyrights in works created for it by employees, contractors and principles.
You see, it's often difficult for business owner to prove that an employee was working within the scope of employment, to negotiate a separate assignment with contractors, and to have the foresight to include copyright assignments for works created by founders and their relatives. Having a well-drafted catch-all work made for hire agreement, even for employees, is an easy fix and cheap insurance.
You never want to rely on possessing a valid license to use a creative work if your business can own the copyright either by assignment or as the author as a valid work made for hire. However, having a valid license is better than nothing.
As a business owner you must make sure that your company either has an agreement transferring ownership or a license for every image, paragraph and video displayed in advertising media or online, especially online! There's a cottage industry of lawyers sending cease & desist letters to owners of small businesses, especially restaurants, for infringement of copyrighted works. And make sure that you can prove it!
Do you have a written license agreement for every image that your business uses online?
A license may be nonexclusive or exclusive. If the work is a custom work made only for your business, then it would be best to own the copyright. Second best is for your company to have an exclusive license to the custom work.
A nonexclusive license is the least preferred but most common license for a small business. This includes most click through and shrink wrap agreements for software and images from service bureaus like Getty Images, Depositphotos and Shutterstock, for example. You might have access to 'free' images through a website builder, Youtube, a WordPress theme provider or a stock image provider. Make sure that your read the terms of the license provided and make sure that the licensor has a good reputation for actually having the rights necessary to provide your company with a license to these 'free' images. Otherwise, your business isn't protected.
As a last resort, it's possible that a court might find an "implied license" exists under certain circumstances. If your company doesn't have a written agreement with the author of a copyright work or someone authorized by the author to provide a written agreement, whether license or assignment, it may nonetheless have an implied license if your company paid the author to create the work for the way it is being used by your company. This is a last resort, because it might cost your business hundreds of thousands in legal fees and costs to prove that an implied license exists, and it might result in severe restrictions on your use. You might be stuck using the work without changes and without expanding the use beyond whatever use your company can prove was intended at the time payment was made to the author. And that's the best outcome you can hope for if you fail to have a written agreement.
It's so much easier to make sure that you have a written agreement in place. So, don't be the business owner that ignores this and has to learn the hard way.
Of course, the best way to handle this is to have a written agreement made by your qualified attorney for every person that creates anything for your business based on the specific facts of the transaction between your company and the author. Expect this to cost $2000 per agreement at a minimum if the attorney really wants to capture the intent of all the parties to the transaction.
Now, if you own a small business that can't afford to hire an attorney to prepare every agreement for you, you might find yourself searching on the Internet for a free form. Don't do it!
The only thing worse than doing nothing is fooling yourself into thinking you've done the right thing merely by doing something. I've seen some really big mistakes. Think use of an NDA instead of a well-drafted work made for hire agreement.
I can help you to learn how to customize a well-drafted work made for hire / assignment / license catch-all agreement that will make it hard for even the busiest founder DYI'r to mess it up. Just schedule a prepaid meeting using the button below. It'll only take 20 minutes or so to find out and costs only $95 to receive both a catch-all work made for hire / assignment / license form and the training to know how and when to use it. You'll either feel confident knowing when you can use the provided catch-all agreement, or you'll know its worth it to hire an attorney to prepare agreements for your business.
Bonus: Chris Paradies will answer your other copyright related questions if their time.