Copyright Does the Fact That I Sell My Product Confer Automatic Copyright Protection

[R92024]

Jurisdiction

California

I currently have a design patent on the appearance of a product, and would like to approach an international company with a view to them licensing the concept.

My design patent expires in a couple of years, so I'm exploring whether to apply for copyright protection as well.



It's a unique product that I created 25 years ago, and I manufacture and sell it, primarily online, and have done for 10 years.



I have applied for copyright protection twice, both times refused for 'lack of authorship.'

On the first occasion I used the exact same image as I used for the design patent.

On the second application, I added more detail, but it appears it's still not enough.

I could add more detail again, but that may limit the companies I can approach for licensing.



Am I over-thinking this?

Do I already have sufficient copyright protection because the product exists in physical form, and I could prove it has done for several years?



Many thanks for any advice!

 

[zddoodah]

My design patent expires in a couple of years, so I'm exploring whether to apply for copyright protection as well.

First of all, while there may be crossover between a design patent and a copyright, patents and copyrights cover completely different things, so I'm unsure what the pending expiration of your patent has to do with a possible copyright. Second, unlike with a patent, there's no such thing as "apply[ing] for copyright protection." Copyright protection exists the moment a work of authorship is fixed in a tangible medium of expression. You don't need to "apply" for it. You can register a copyright, and registration carried some significant benefits, but registration is not required for copyright protection.

I have applied for copyright protection twice, both times refused for 'lack of authorship.'

No real way to explain that without knowing what your product/design patent is and what registration form you submitted to the Copyright Office.

On the first occasion I used the exact same image as I used for the design patent.

On the second application, I added more detail, but it appears it's still not enough.

This explains it a little bit. Folks at the Copyright Office wouldn't know what to do with an explanation of a patentable invention.

I could add more detail again, but that may limit the companies I can approach for licensing.

Since your patent is a matter of public record, I doubt that's true, but I agree that too much detail here would not be a good idea.

Am I over-thinking this?

No. You seem to lack a proper understanding of what a copyright is and the differences between a patent and a copyright.

Do I already have sufficient copyright protection because the product exists in physical form, and I could prove it has done for several years?

As a general matter, products that can be patented are not eligible for copyright protection. However, as mentioned above, there is some crossover between the subject matter of copyright and of design patents. Determining whether yours (or some aspect of it) is eligible for copyright protection would require knowing all of the relevant details and (probably) inspecting the product. I suggest you confer with a local intellectual property attorney.

 

[army judge]

Many thanks for any advice!

You should avoid asking strangers any questions that expose you to being scammed, bamboozled, or conned.

You should discuss how to protect your interests with an intellectual property, patent, or copyright attorney.