Executives and employees of many companies assume copyright protection only applies to books, movies, or music. In reality, your company’s employees and independent contractors create copyrightable works every day by developing content for your company’s website, marketing campaigns, software, training materials, photographs, and other original content. Recognizing these assets can be protected by copyright law is an important part of protecting your company’s portfolio of intellectual property.
Copyright Law Protects Original Expressions Written Down, Not Ideas
Copyright protection in the United States is based in Article I, Section 8, of the U.S. Constitution, which empowers Congress to provide authors with certain exclusive rights in their writings for a limited time. “Writings” broadly mean any work of original expression in any form or medium, including literary, artistic, musical, and many other kinds of works. “Author” is also interpreted broadly to include all creators of these works.
One of the most important principles of copyright law is that it protects the expression of an idea, not the idea itself. A person who reduces an idea to a tangible medium of expression – read, writes it down – is the author and hence the holder of a common law copyright.
For example, your company cannot claim ownership over the general concept of creating instructional videos about your products or services. However, the specific script, narration, graphics, animations, music, and finished video may all qualify for copyright protection if they contain original creative expression that has been reduced to a tangible medium of expression, like a piece of paper, computer or photograph.
Likewise, your company cannot copyright a marketing strategy, pricing model, customer service process, or business method simply because you developed the concept first. Those ideas may be valuable, but copyright law generally protects only the way those ideas are expressed in a tangible form.
Understanding this distinction will help your company identify which assets can be legally protected through copyright law and which may require other forms of intellectual property protection. We will address the benefits of registering a copyrightable work with the U.S. Copyright Office in a future blog.
Website Content
Your company’s website often contains numerous copyrightable works.
Depending on the website, copyright protection may extend to original written content, blog articles, product descriptions, photographs, custom graphics, videos, downloadable guides, infographics, and certain aspects of the website’s visual design.
Companies that conduct business nationwide, and indeed globally, frequently invest significant resources developing website content that distinguishes them from competitors. Unauthorized copying of this material is infringement, is unlawful, and can dilute a company’s brand and undermine its investments in marketing its goods and services via the Internet.
You should always keep in mind that copyright ownership does not automatically belong to your company simply because you paid someone to build your website and develop the content you publish on the site. If a developer, designer, or marketing agency your company contracted with created all or portions of the content on your website, it is important to ensure the contract your company entered into with that person clearly states your company owns all the content they developed for your business under that contract. Otherwise, they own the content and your company will need a license to publish it. We will explore the many issues of content ownership in greater detail in future blogs in this series.
Marketing Materials and Advertising Content
Marketing professionals, whether in-house employees or outside consultants, continuously produce original works of authorship that may qualify for copyright protection.
Examples include:
- Brochures and catalogs
- Sales presentations
- Advertising copy
- Email marketing campaigns
- White papers
- Product manuals
- Case studies
- Newsletters
- Photographs and videos
- Original social media content
While individual slogans and short phrases may not be protected by copyright law – though they may be protected by trademark law – longer original creative works often are. Your company should consistently identify and evaluate the marketing materials developed in-house and by outside consultants as valuable intellectual property rather than simply promotional content.
Photographs, Graphics, and Videos
Visual content has become one of the most valuable forms of business intellectual property. Professional product photography, promotional videos, explainer animations, custom illustrations, architectural renderings, infographics, and branded graphics may all receive copyright protection if they meet the legal requirements of originality.
The legal protections extend regardless of whether the content appears on your company’s website, social media accounts, printed materials, or digital advertisements.
You should also remember that simply purchasing a photograph or hiring someone to create visual content does not necessarily transfer copyright ownership to your company. Ownership depends on the circumstances under which the work was created and the contract that exists between your company and the person who created the work.
Software and Digital Content
Many companies mistakenly believe software can best be protected through patent law. In fact, copyright law provides far more long standing and significant protections for computer software. Both source code and object code may qualify for copyright protection because they are considered literary works under the Copyright Act.
Your company may also own copyrights in mobile applications, customer portals, databases containing original organization or selection, user interfaces containing original creative elements, training modules, and other digital assets.
Although copyright law protects the original source and object code itself, it generally does not protect the underlying functionality, processes, or ideas implemented by the software. That functionality and processes may be protected by patent and trade secret law.
Compilations and Derivative Works
Copyright law also protects certain works that build upon or organize existing material.
A compilation may qualify for protection when the author’s original selection, coordination, or arrangement of information reflects a sufficient level of creativity. Examples include directories, databases, reference guides, or curated collections of content.
Similarly, derivative works may receive copyright protection when they transform or adapt an existing copyright protected work with appropriate authorization. Examples include translations, revised editions, adaptations, or new versions of existing materials.
The copyright in these derivative works generally extends only to the new creator’s original contributions to the derivative work, not to the underlying copyrighted material itself.
What Copyright Does Not Protect
Understanding what falls outside the scope of copyright protection is just as important as knowing what is covered.
Generally, copyright does not protect:
- Ideas
- Facts
- Procedures
- Systems
- Methods of operation
- Business concepts
- Discoveries
- Short phrases and slogans
- Titles
- Names
Companies often assume that because they developed an innovative business process or marketing concept, copyright law automatically protects it. That is not the case. Depending on the circumstances, other forms of intellectual property protection, such as patents, trademarks, or trade secret law, may provide more appropriate and effective protection.
Practical Examples for Businesses
Consider a few common scenarios.
A consulting firm develops an original employee handbook, publishes educational articles on its website, and produces instructional videos for clients. Each of these works may qualify for copyright protection if they contain original contents of authorship.
A software startup develops proprietary application code, user documentation, and custom interface graphics. Those creative works may also receive copyright protection, even though the underlying software functionality does not.
A manufacturer creates detailed installation manuals, product photography, training presentations, and instructional animations. Each of these materials may represent valuable copyright assets that deserve legal protection and careful management.
These examples illustrate how copyright protection extends across virtually every industry.
Protecting Your Company’s Creative Assets
Businesses often focus on protecting physical assets while overlooking the value of their intellectual property. Yet original content can represent valuable assets and a significant advantage against your competitors in various markets.
Identifying copyrightable works, maintaining clear ownership through written agreements, and implementing thoughtful intellectual property policies can help your company maximize the value of the content you create while reducing the risk of ownership disputes and infringement claims with employees and consultants.
About Finkel Law Group
Finkel Law Group P.C., with offices in San Francisco, Oakland and Washington D.C., has over 30 years of experience helping businesses identify, protect, and commercialize their intellectual property. Our attorneys advise companies on copyright ownership, licensing, registration, technology agreements, and intellectual property strategies that align with broader business objectives. Whether you wish to protect original content, negotiate licensing agreements, or responding to potential claims of infringement, our team can help you protect the creative assets that drive your business forward. When you need intelligent, insightful, conscientious and cost-effective legal counsel to assist you with your copyright matters, please contact us at (415) 252-9600, (510) 344-6601, (771) 202-8801 or info@finkellawgroup.com to speak with one of our attorneys about your matter.
