As businesses of all types and sizes invest in branded content, the need for copyright policing is becoming more apparent than ever. That means not only monitoring for copyright infringement, but also granting licenses for uses deemed valid, viable or profitable. Licensing your materials can help you reach new audiences, gain brand recognition and build lasting partnerships, all while retaining control of your assets. While it is not necessarily difficult to license a copyrighted work, there are many things to keep in mind. The San Diego business attorneys at Gehres Law Group, P.C. offer their most important tips.
Know Your Property
Intellectual property isn’t always as straightforward as it may seem. While it is true that common law grants copyright immediately upon publishing a work, a federally registered copyright with the U.S. Copyright Office provides much more protection in the case of a dispute. Consider registering your works prior to licensing them, and remember that they must be in fixed or tangible form in order to be eligible for federal copyright. Works that can be copyrighted include literature, theatre, music, choreography, motion pictures, audio-visual works, architectural works, engineering designs and software code. You are not able to copyright names or slogans; they must be registered instead as trademarks.
Create a Clear Agreement
A licensing agreement is an absolute must-have. You can find templates online, but it is recommended to consult a business attorney with intellectual property expertise. They will be able to draft an agreement that is specific to your needs and goals, which may then serve as your own customized template if your circumstances permit. A licensing agreement outlines fees, royalties and any other payments by the licensee. It will also include the term (length), scope, uses, rights, warranties, indemnity, enforcement and other crucial details. In simplest terms, this document ensures you are both paid and protected during the engagement. If you do not have a license agreement and end up in a dispute, courts will typically look to common practices to guide their decisions, which often leaves owners in a less favorable situation.
Keep Detailed Records
All licensing agreements should be filed and backed up. If a licensee violates their license terms, accurate documentation will help your attorney settle the dispute either directly with the violating party or, if necessary, in court. It is also a best practice to create a database of your copyrighted and licensed works. This can be as simple as a spreadsheet showing the name of each work, to whom it is licensed and the date the contract expires. With the many calendar tools and integrations available today, you can even set a reminder to renew or renegotiate expiring licenses ahead of time.
Use Exclusivity Sparingly
Very rarely is an exclusive license the ideal engagement for the licensor. Yet, many licensees will seek exclusive rights. Understand that once you sign an exclusive license agreement, you will not be able to exercise your rights until they are granted back upon the expiration of the agreement. If you are giving exclusive rights for your copyright, the licensee should be projecting significant revenue to your business through any combination of royalties, fees, advances and minimum guarantees. While non-exclusive licenses can be implied, exclusive licenses must usually be written in order to be valid.
From a business perspective, intellectual property is a living, breathing organism. As such, license agreements should be monitored consistently to ensure licensees are abiding by the terms. Even in the most concise agreements, miscommunications can occur. It is better to catch a small misstep than an egregious misuse, especially considering the fact that there is an underlying business relationship.
Because of the risks and responsibilities that come with licensing copyrighted work, most organizations seek an intellectual property attorney who can provide reliable counsel in all areas of intellectual property law, including trademark and copyright registration, licensing and litigation. Rather than wait until a problem arises to hire a business lawyer, build a relationship and proactively establish processes to protect your property, brand and business.
About the Author
Tina K Gehres is the President and founder of Gehres Law Group, P.C. in San Diego, California. Ms. Gehres holds more than two and a half decades of legal and business experience. Today, she uses her experience to provide legal services to small businesses and individuals and has positioned herself as a valuable asset to all of her clients.