Part 2: copyright registration or patents: where’s the catch?

Business people should be aware of another feature of United States copyright registration: the permissions for completion of the application. Many clients arrive at my office with a wonderful visual art or literary work that includes components created and owned by others. For example, a collage could contain a photograph by another author, even though the actual physical photograph copy belongs to the client. In this example the remaining photographs and their arrangement are independently created by the client.

To avoid a problem I always ask the client whether there are components in a work that he or she did not independently create. If the answer is yes, then the next question is how to contact the person who owns the components for permission to include them in the client’s work (assuming that these components are not otherwise available for public use). This contact should occur prior to filing the application for the client’s entire work with the copyright office. Often it is difficult and expensive to identify and locate the person who owns these rights to the component. Or, sometimes you identify the person and contact them, but they do not respond. Or, they respond and will not provide permission, or they respond, say yes, and then demand an unrealistic fee.

Nevertheless, to obtain a United States copyright registration the author should obtain permission(s) to incorporate the work(s) of others. Let’s take a ‘time out’ to compare this important wrinkle to the United States patent process. More often then not, an inventor builds upon a device or process which already exists. However, the inventor need not obtain permission to modify or improve the device or process to obtain the patent. In fact, if old parts are not adequately described in the application, a resulting patent may be invalid. Why? Because without the complete description the invention cannot be reasonably recreated even by someone familiar with the subject matter.

Of course the free patent ride eventually comes to a screeching halt: if you wish to produce your invention, you may require a license from persons who own the rights to earlier invented components. This is the case even if you have described these earlier components and prototypes in your patent.

Returning now to our copyright question: Can we escape from the permission box without contacting the copyright owner of the component? Perhaps, under the infringement (copying) defense known as fair use. Unfortunately, fair use is similar to a rubber band that stretches and twists according to somewhat inconsistent legal criteria of different U.S. courts.

Fair use also depends upon the kind of work which is copied or modified by otherwise unauthorized persons. For instance, there are exceptions for copying computer programs that would otherwise qualify as infringement. One such exception (but not the only exception) is the reverse-engineering of programs to sift non-copyright eligible elements. With other works there are exceptions for, but not exclusively, quotations, parodies and political comment.

© 2010 Adrienne B. Naumann

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