Understanding Business Communication Copyright Laws

Question: What are the copyright laws regarding business letters and other forms of communication? Some members of a copyediting-related discussion list have asked the question, “Who owns the copyright (as opposed to owning the letter)?” And how does this relate to e-mail?

For some reason, there is a common misconception that correspondence and other forms of communication are not subject to protection by U.S. copyright laws; however, generally, that is not true.

The U.S. Copyright Act states that protection exists “in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Therefore, letters typically are protected by copyright law.

Further, letters are subject to the same copyright ownership rules that apply to other copyrightable works. That is, the letter writer himself or herself often would own the copyright in a letter. The writer’s employer, however, could also own the copyright under the “work for hire” doctrine; or a “ghost writer” could own the copyright in a letter to which someone else’s name is attached; or more than one person could own the copyright.

Interestingly, note that the law requires that a copyrighted work be in a “tangible medium of expression.” While a hardcopy letter printed on company letterhead clearly is a “tangible medium of expression,” what about e-mail? Although there has been some academic discussion about this issue, it is generally accepted that electronic communications are protected by copyright law just as their hardcopy counterparts (perhaps because the computer, monitor, or hard drive represents the required “tangible” item).

Now, you may be wondering whether a letter or other correspondence needs an appropriate “copyright notice” (such as, “Copyright © 2000 Doug Isenberg”) to gain protection of the copyright laws. The answer here is the same as for all other copyrightable works: Under U.S. law, a copyright notice is not required, although using one does afford the copyright owner some advantages. In any event, two lessons should be clear:

1.     When creating communications, you do not need to include a copyright notice in order for the communication to be protected by U.S. copyright law; and

2.     When deciding whether to use someone else’s communications, do not assume that you may do so freely simply because the communication does not contain a copyright notice.

Although U.S. copyright law applies to correspondence, not all correspondence will be protected. In other words, the correspondence must meet the law’s other requirements, such as that it be an “original work of authorship.” Therefore, a simple one- or two-sentence letter might not meet the originality requirement under copyright law.

What about letters to the editor of various publications? How can these be reproduced (via publication in the newspaper, magazine, etc.) without obtaining an express copyright assignment or license from the letter writer? Generally, it is assumed that an author who submits a letter to the editor grants an “implied license,” that is, he or she consents to the letter being published and therefore cannot later argue that his or her copyright was infringed.

 

An attorney practicing intellectual property and Internet law in Atlanta, Doug is the editor and publisher of GigaLaw.com, a Web site that provides legal information for Internet professionals, high-tech entrepreneurs, and the lawyers who serve them. Doug is licensed to practice law in the state of Georgia. In the "Ask the Lawyer" column, Doug answers legal questions of interest to the technical writing community and provides resources for finding more information.

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