asset acquisitions - Jackson Walker LLP

Copyrights: 17 U.S.C. §102(a) provides that “[C]opyright protection subsistsΨ inoriginal works of authorship fixed in any tangible medium of expressionΨ from which theycan be perceived, reproduced, or otherwise communicated.” Works of authorship that can beprotected by copyright include literary works, musical works, dramatic works, pantomimesand choreographic works, pictorial, graphic, and sculptural works, motion pictures and otheraudiovisual works, architectural works, and sound recordings. See 17 U.S.C. § 102(a)(1)-(8). Computer software is considered a “literary work” and can be protected by copyright.Ideas, procedures, processes, systems, methods of operation, concepts, principles, anddiscoveries cannot be copyrighted. See 17 U.S.C. §102(b). The copyright in a work subsistsat the moment of creation by the author--registration of the copyright with the U.S.Copyright Office is not necessary. The term “copyright” as used in the definition ofIntellectual Property Assets includes all copyrights, whether or not registered.Section 3.25(c) provides assurances to the the Buyer that the Seller actually has titleto the copyrights for works used in the Seller’s business. Such assurances are importantbecause the copyright in a work vests originally in the “author,” who is the person whocreated the work unless the work is a “work made for hire.” See 17 U.S.C. § 201(a)-(b). Awork can be a “work made for hire” in two circumstances: (i) when it is created by anemployee in the course of employment, or (ii) when it is created pursuant to a writtenagreement that states that the work will be a work made for hire, and the work is of a typelisted in 17 U.S.C. § 101 under the definition of “work made for hire. “Although rights in a copyright may be assigned or licensed in writing, the transfer ofcopyrights in a work (other than a “work made for hire”) may be terminated under theconditions described in 17 U.S.C. § 203. If a seller owns copyrights by assignment orlicense, the buyer should ensure that the copyrights cannot be terminated, or at least that suchtermination would not be damaging to the buyer.The buyer should verify that the terms of the seller’s copyrights have not expired.The term of a copyright is as follows:1. For works created on or after January 1, 1978, the life of the author plusseventy years after the author’s death.2. For joint works created by two or more authors “who did not work for hire,”the life of the last surviving author plus seventy years after the death of thelast surviving author.3. For anonymous works, pseudonymous works, and works made for hire,ninety-five years from the date of first publication or 120 years from theyear of creation of the work, whichever expires first.Although it is not necessary to register a copyright with the U.S. Copyright Officefor the copyright to be valid, benefits (such as the right to obtain statutory damages,attorneys’ fees, and costs) may be obtained in a successful copyright infringement action ifthe copyright in the work has been registered and a notice of copyright has been placed onthe work. Indeed, registration is a prerequisite to bringing an infringement suit with respectto U.S. works and foreign works not covered by the Berne Convention.3148166v1- 104 -