The business attorney's guide to opyright law: as copyright interests grow increasingly valuable, businesses that fail to protect their creative works - or be mindful of the issues affecting their rights - run high legal risks. You can provide a key service to your business clients if you understand copyright basics

Illinois Bar Journal, Jan, 2009 by J. Joseph McCoy

Implied licenses. While the Copyright Act contains detailed provisions on the licensing of copyrighted works, courts have still recognized implied nonexclusive licenses in certain, narrow circumstances. An implied license may exist where, absent a written or oral agreement, the author of the work nevertheless turned a copy over to another intending that it would be used for a specific purpose. (39) An implied license does not transfer ownership of the copyright.

This concept was illustrated in IAE, Inc v Shaver. (40) In this case, an architect prepared schematic design drawings for an airport building pursuant to his contract with a construction company. In a letter to the construction company, he expressed hope that the design drawings would be useful in completing the airport hanger.

The architect later filed suit against the company for copyright infringement when his firm was dismissed from the project. Both the district court and the court of appeals concluded that the circumstances gave rise to an implied nonexclusive license to use the drawings for the project. (41) At least one Illinois case has held that an implied license cannot exist if the work was not created at the licensee's request. (42)

Publication of the work. One of the challenges of copyright law is determining whether a particular work has been "published." Publication is a copyright term of art. Much broader than the common use of the term, a work has been published for copyright purposes if copies of the work have been distributed to the public (43) by sale, rental, lease, or lending, but also if the owner has made an "offering" to distribute copies of the work to a group of persons for "purposes of further distribution, public performance, or public display." (44) Note that copies of the work must be made available to the public for the work to be published; a public performance or display of the work, by itself, does not constitute publication. (45)

If a copyrighted work is published, that work becomes part of the public domain and loses some of its protection. Therefore, an authorized reproduction of the work may no longer constitute infringement. (46)

Publication also starts a three-month grace period for registering the work. If the work is not registered by the end of this grace period, the copyright owner is no longer entitled to an award of statutory damages and attorneys' fees from an infringer. (47) Finally, because copyright owners who published their works before 1989 may have lost all of their rights in the work if they did not include a copyright notice, the publication date is extremely important for older works. (48)

Close analysis may be required to determine whether your client's work has been published. Courts have distinguished a "general publication" from a "limited publication." A general publication occurs when a work is freely offered to any potential customers or buyers. (49) A limited publication, by contrast, only communicates the contents of the work to a selected group, for a limited purpose, and without the right of diffusion, reproduction, distribution, or sale. (50) A limited publication does not render the work published under copyright law.