A Friendly Neighborhood Reminder about Copyright Law

Will Arledge
December 18, 2008 — 1,199 views  

With the infiltration of the web into all aspects of our lives, we are now more than ever bombarded with images, advertisements, emails, e-videos, slogans, songs, web pages etc. For the modern entrepreneur, building a brand can sometimes be troublesome with the abundance out there of creative expressions that you thought you conceived first, only to find out that you were beaten to the punch by some other crafty individual.

Where does one draw the line? When is it okay to use someone else's idea? Or the flip side; when is it okay for someone else to use your idea?

The short answer is..."it depends." So let's use this as an opportunity to talk about copyright law, one of the most common and confusing intellectual property laws in America today.

A copyright is designed to protect the "tangible creative expression" of an idea. The keyword here is "tangible," meaning that the idea cannot simply float around in the creator's head to be protected. It must be manifested in an expression; like a card, song, software, book or article.

Interestingly, once an idea is expressed, it is immediately copyrighted. There is no paperwork to sign, no fees to pay--your tangible expression is assumedly protected for more than a lifetime. You can even, and should, go ahead and put that © next to any and all copyrightable items you create (for a list of these types of items see Nolo Press' website at nolo.com).

If this all seems oversimplified, that would be correct. Even though informing others that your material is copyrighted is a wise decision, it may not be enough to legally enforce a copyright infringement claim. As copyrighting is an intellectual property law that provides "passive" protection, anyone who so desires can go right ahead and steal a copyrighted expression. Only until the original creator steps in and files a violation claim can justice be done.

However, making a claim will not always solve the problem, as courts look at many factors in a case by case basis. These factors include, but are not limited to, the following:

First, has copyright infringement actually occurred? Is this a real violation of a copyrightable expression? Is this expression tangible? Evidence for this must be demonstrated in federal court.

Second, is the copyright officially registered? Even though your work is automatically copyrighted, officially registering the expression (a modest fee payable to the library of congress) will go a long way in a court battle and may help recover some court costs.

Third, is the claim of copyright infringement really reasonable? Sometimes courts will throw out claims where copyright infringement is unrelated to the business or purposes of the creator or reportable to the public through the press, or being used in important research.

Fourth (and as amusing as this may seem), did the original creator ever ask the infringer to stop infringing? Sometimes a simple gesture can go a long way in the eyes of a reasonable court in an overly-litigious society.

But what of the hapless entrepreneur (awash in a sea of good ideas which aren't his own) who can't seem to think of an original, tangible expression to get his venture going? The best advice of intellectual property aficionados would be to ask the original creator if his/her idea may be used. Most times, a mutually beneficial compromise can be worked out and no legal actions need occur.

About the Author

Will Arledge is a 2006 graduate of the University of North Carolina at Chapel Hill with a degree in Communication Studies. Will is also currently enrolled in the Master's Degree program in Entrepreneurship at Western Carolina University. Webmasters and other article publishers are hereby granted article reproduction permission as long as this article in its entirety, author's information, and any links remain intact. Copyright 2008 by Will Arledge.

Will Arledge