Copyright & Personality Rights

April 8, 2019

Any “original work of authorship” is copyrightable in the United States and virtually all other countries of the world. All copyrighted works or personality rights used by your company must be owned or licensed for use by the company. Employees are not to use the copyrighted material of others without clearance from your company’s legal team.

Copyright & Personality Rights Topics

Personality Rights
Copyright Registration and Marking
Protecting Copyrightable Works
Ownership of Copyright

Personality Rights

Personality rights are generally considered to consist of two types of rights:

1. The right of publicity, or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation. This is similar to the use of a trademark and the right of publicity can survive the death of the individual.
2. The right to privacy, or the right to be left alone and not have one’s personality represented publicly without permission.

Usually, the motivation to engage in commercialization of personality rights is to help propel sales or visibility for a product or service.

Clearance to Use Copyright or Personality Rights

Before any third party works of authorship or personality rights are used in any way, for example in a publication, advertising materials or a web site of the Company, they must be cleared for use by your company’s legal team.

Copyright Registration and Marking

Works can be registered with copyright according to the following criteria:

• The works are likely to be copied
• The works provide or support commercial value
• The works are published and available to the public

While copyright notice is optional in many jurisdictions, there are compelling reasons to use copyright notice on all copyrightable works owned or licensed to the Company.

Protecting Copyrightable Works

In some jurisdictions, a registered copyright confers important legal rights that a company can preserve – China and the United States are two such jurisdictions. As such, all important copyrighted works can be registered in China and the United States but special care should be taken in registering any engineering or software works so that trade secrets are not forfeited. For more information, see the guidelines within this section.

In the United States, copyright registration confers certain enforcement benefits such as:

• The ability to sue. A registered copyright should be held in order to sue another party for infringement in federal court.
• Increased damages. The copyright holder may be entitled to statutory damages and attorneys’ fees. Rather than having to prove actual damages, a copyright holder with a timely registration may be eligible for statutory damages of up to $250,000 per infringement, plus attorneys’ fees. “Timely” means that the registration was made before the infringement occurs or within three months of publication.
• Attorney’s fees to be paid by the infringer.
• Customs protection. Allowing the copyright holder to record the registration with U.S. Customs to protect against the importation of infringing copies into the US.

A copyright notice contains four different elements, each of which is brief but important.

1. The Copyright Symbol — ©
2. The Year of the Creation
3. The Name of the Author
4. A Rights Statement

For example: © 2016, Company Inc. All Rights Reserved.

In the cases where the material was created over a period of time, you can simply use a hyphen to designate a range, such as “2010-2016.”

The name is just the name of the owner of the work, in most cases the Company. A rights statement is nothing more than an indication in the rights you hold in the work. “All Rights Reserved” preserves all rights in the work and should be used in all cases. 

Ownership of Copyright

The individual that authors a copyrightable work is the owner of the work. The only two exceptions are:

1. An employee automatically assigns all copyrights to his or her employer. In other words, an employer automatically owns all copyrightable works created by an employee, even in the absence of an agreement.
2. The work is assigned by a written agreement.

To obtain ownership of a work created by a non-employee, a company must have a written agreement with the author or developer, such as:

• Independent contractors or free-lancers engaged by the company.
• Organizations engaged by the company to write software or author documentation or sales and marketing materials, such as software development groups, advertising agencies, logo designers, and graphic artists.

The owner of a copyrighted work has a number of rights, including:

• The right to reproduce the copyrighted work.
• The right to prepare derivative works.
• The right to distribute copies of the work to the public.
• The right to perform the copyrighted work publicly.
• The right to display the copyrighted work publicly.
• Moral rights. The right to control modification of the work even after it has been assigned.

Most importantly, this means a company cannot use, modify or exploit the copyrighted works of others without express written permission, unless the exploitation is considered a “fair use.” The fair use exception is very narrow for commercial use of works and should never be assumed to apply. Moral rights are of particular concern if any part of the work was made outside of the United States.