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What founders should know about copyright law with startup attorney Chris Brown

When it comes to copyrights, one mistake can set you back thousands or upend your entire business.

Whether your an Indie Hacker collaborating on projects, hiring freelancers, or working as a freelancer, there are some copyright basics you should know.

Copyright is a form of intellectual property that protects creative works, including code, music, literature, art, business documents, graphic design, and more. It grants a creator exclusive legal right to reproduce, publish, sell, or distribute something.

Pixel Law founder and attorney Chris Brown has seen his fair share of copyright mistakes. Some blunders carry a particularly steep price.

“An entire business can fall apart if it turns out the business doesn’t own the copyright in their app or website,” he said.

Brown’s firm focuses on bootstrapped startups and freelancers, handling anything from business formation and employment agreements to trademark applications and legal terms for apps.

I spoke with Brown about his practice, common copyright mistakes, and some hypothetical scenarios of copyright disputes. Find Brown on Twitter, Instagram or at his firm.

Why do you focus on startups and freelancers?

It’s so rewarding to know that my legal services will have a huge impact on the success of my freelance and startup clients. They are often new to entrepreneurship and I can help point them in the right direction, not only from a legal perspective but also from a perspective of building a sustainable business. I get a lot of joy out of helping these kinds of entrepreneurs.

Is this a relatively niche area in law?

Although there are a lot of “small business attorneys” out there, I find my practice to be fairly niche.

I'm hyper-focused on the legal issues entrepreneurs are likely to face when starting a company, and I have a lot of experience starting and selling companies myself. This real-world experience has helped me to provide very practical advice to my clients. Moreover, my experiences make it easier for entrepreneurs to hire me because they can tell I’ve seen the same problems they are facing before.

Misconceptions in copyright law

The biggest misconception in copyright law is identifying who owns the copyright to an original work.

Paying someone for a piece of work doesn’t necessarily mean you’ll own the copyright. It’s important to note that the original creator of the work will be the owner of the copyright to that work unless some exception applies.

The three most common exceptions are when the work is created by an employee within the employee’s scope of employment, when the creator expressly assigns the copyright in writing, or when the creator creates a “work made for hire,” which is a very narrow concept under the Copyright Act.

Common copyright mistakes

The biggest mistake a creator can make is failing to address copyright ownership in their contract. This is especially true for freelancers and small agencies. You should always include an Intellectual Property provision in your contracts and make it very clear who will own what.

Can these mistakes be costly?

Yes. And it depends on whether you are the creator or the client/employer.

Copyright ownership includes a vast bundle of rights and if you don’t own something you think you own, you won’t be able to use the work. An entire business can fall apart if it turns out the business doesn’t own the copyright in their app or website, for example.

Copyright infringement claims

Copyright infringement claims can be complex.

To begin, if you want to bring a copyright lawsuit in a federal court, you must first register your work. So for starters, if you think someone is infringing your work, it is often a good idea to start the registration process if you haven’t already done so.

The next step is deciding how to reach out. Often you’ll start with sending demand letters rather than filing a lawsuit because lawsuits are expensive, time-consuming (i.e., years), and involve additional risks of counterclaims. In either event, you should always speak with a copyright litigation attorney for advice.

When, why someone should file a copyright

If your core business is selling creative works that are easy to duplicate — movies, music, books, etc. — then it is a great idea to register your copyright in those works. Registration gives you greater legal rights, the ability to sue in federal court, higher damages, rights to attorney fees, and more.

But more practically, if your core business is selling creative works, then you need to take steps to protect those works. On the other hand, if you are merely creating an ebook to support your service business, registration, although helpful, is not as important. This is because you can still claim ownership of the copyright to your works, even without registration.

Say an informal group of devs collaborate on an app. Who owns the copyright?

It may be deemed a joint work, but you may not like that approach because then any one of the joint owners could exploit the work.

If it isn’t considered a joint work, then it would be very confusing to determine who the owner is. In that situation, they should either sign some kind of joint venture agreement and outline copyright ownership and use restrictions, or they should create an LLC or Corporation and transfer ownership to that entity.

Say you develop A.I., and it creates a work of art. Who owns the copyright?

This is a great question. I don’t know. I don’t know if anyone knows.

But there is a somewhat related dispute involving a monkey that took a picture with a photographer’s camera. There were lawsuits about it and everything. But I think it settled out of court, so the courts never answered the question of whether a non-human can own a copyright.

Tips for hiring or working as freelancers

My advice above is probably the most important–cover copyright ownership in the contract! This is especially true when working with freelancers.

Trends in copyright law

There’s an entire movement that involves Creative Commons licenses, open-source code, and the like. My advice here is that indie hackers should carefully consider what those concepts mean before (a) creating works and licensing them with those kinds of licenses, or (b) using any such works in their works.

Food for thought

Entrepreneurs and freelancers need to keep in mind that copyrights protect creative works, which is a very broad category. But there are other areas of intellectual property such as trademarks to protect branding elements, trade secrets to protect confidential information, and patents to protect inventions. Those four areas of IP are very related, but also very different from one another.

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    Is the item considered copyrighted if I bought it back under a temporary license and gave it to a third party to use? I'm just curious to know what you think. Why can't people who suffer from various encumbrances take full advantage of their rights? They have legal representatives, and even a lawyer from here https://www.employmentattorneylosangeles.com/practices/disability-discrimination-attorney/ After all, they can use his intellectual property if it has been released in its entirety from the author of the invention or taken on loan (a user license is temporary). Why doesn't the law provide a clear concept of transferring ownership rights even temporarily to third parties?

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