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Imitation – Is it Flattery or Profiting by Copying?

10/23/2017 7:14 PM | Elizabeth Barnhard

Oscar Wilde said imitation is the sincerest form of flattery that mediocrity can pay to greatness, but as a business owner, the copying of your products and services by others can hurt your sales and may hurt your reputation.  How do you protect the knowledge, ideas, innovations and brands that give you and your companies a competitive advantage?  If they are protected intellectual property, you will have legal rights to stop the copiers of your products and services.  The main types of intellectual property include patents, trademarks, copyrights, trade secrets and trade dress.  We previously focused on trademarks in the post Business Assets You Do Not Want to Ignore, and we focused on patents in the post Necessity is the Mother of Invention.  Now we will focus on copyrights.

What is a copyright?  In its broadest sense, a copyright protects creative expressions with our U.S. Constitution giving authors the exclusive right to their works for a limited time in Article 1, Section 8.  More specifically, copyrights give their owners the right to prevent the copying by others of original works of authorship that are fixed in a tangible medium of expression, including literary, dramatic, musical, and artistic works. 

What can be copyrighted?  The work must be original and must be fixed in a tangible medium of expression.  Only a “minimum level of creativity” is required.  Examples of works that can be copyrighted include poems, manuscripts, paintings, photographs, sculptures, musical scores, movies, dance, jewelry designs, architectural works, computer software, source codes, apps, video games, company websites, and product manuals 

Copyright does not protect facts, ideas, systems, or methods of operation, although the way these things are expressed may be protected.  For example, a manufacturing method cannot be protected by copyright, but an instruction manual describing how to perform the manufacturing method could be protected by copyright.  However, if there was a discovery that improved the manufacturing method in a new way, then the improved manufacturing method could be protected by a patent, which would provide an additional type of intellectual property protection.

The owner of the copyright can be an individual author, co-authors if it is a joint work, an employer if the work is a work made for hire, or the assignee where the owner has assigned the rights in the copyright to the assignee.

How long does a copyright last?  A very long time.  For a work authored by an individual, the term of the copyright is for the life of the individual plus 70 years.  For a work authored by joint authors, the term of the copyright is for the life of the last surviving author plus 70 years.  For a work for hire, the term of the copyright is 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.  Contrast that with patents, which have a term of 20 years from the date of filing.  When the copyright expires, the work enters the public domain and is available for anyone to use.


The long copyright term means that valuable copyrights can provide revenue to a copyright owner’s heirs.  Over the years copyright heirs have gone to court to sue infringers of their inherited copyrights.  For example, in 2014, Marvin Gaye’s heirs sued Robin Thicke and Pharrell Williams, rapper T.I and their record company claiming that the song “Blurred Lines” infringed Marvin Gaye’s “Got to Give It Up”.  A jury found Robin Thicke and Pharrell Williams liable for copyright infringement and awarded millions of dollars in damages and 50% of future royalties to Marvin Gaye’s heirs.  The trial court judgment has been appealed.

Do I have to register for a copyright?  No, a copyright is secured automatically upon creation when it is fixed for the first time in a copy or recording, such as a phonorecord (vinyl is back!).  Publication of your work is not required to register for copyright.  For example, you have written a book, but your manuscript is not published.  You can apply for a copyright registration for your unpublished manuscript.  You do not have to re-register when the work is published, although you can register the published edition, if desired.

Why bother registering your work for a copyright?  There are several good reasons for doing so in the United States in order to maximize the copyright protection for your work.


A certificate of registration can prove ownership because it creates a public record of key facts relating to the authorship and ownership of the claimed work.  Registration, which can be made at any time within the life of the copyright, establishes prima facie evidence of the validity of the copyright and the facts stated in the certificate when it is made before or within five years of publication. 

You must have a copyright registration for a work made in the U.S. before you can sue an infringer for copying your work in U.S. courts.  When you obtain a copyright registration prior to infringement or within three months after publication of your work, then you, the copyright owner, are eligible for the court to award statutory damages, attorneys’ fees and costs, which can potentially amount to a significant award.


Your copyright registration also permits you to establish a record with the U.S. Customs and Border Protection (CBP)3 for protection against the importation of infringing copies of your copyrighted work.

Is a copyright notice required on my work?  You are no longer required in the U.S. to put a copyright notice on your work, but doing so informs the public of your copyright and can also defeat the innocent infringement defense.  A copyright notice consists of three elements:


(1) Symbol ©, the word “Copyright,” or the abbreviation “Copr.”


(2) The year of first publication of the work

(3) The name of the owner of copyright in the work


Example: Leason Ellis LLP © 2017


Remember, placing a copyright notice on a work is not a substitute for copyright registration.


Protecting the knowledge, ideas, innovations and brands that give you and your companies a competitive advantage will add value to your business.  By working with an intellectual property attorney to obtain and protect your valuable intellectual property, you will have the options to generate revenue by selling these rights, licensing them to others, or using them as collateral to obtain financing.  You are creating business assets that you do not want to ignore.


Want to know more?  I am here to answer your questions and help you recognize and protect your company’s valuable intellectual property assets.

Elizabeth Barnhard

Leason Ellis LLP


(914) 821-3074



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