Copyright is an aspect of intellectual property (IP) law less frequently considered by cannabis businesses than trademark, trade secrets or even patents it seems. Yet, like these other forms of intellectual property, copyrights can afford their holders with market dominance and profitability when utilized correctly. Almost all marijuana businesses own numerous unregistered copyrights, whether or not they realize it.
This post briefly covers the concept of copyright and how it applies to the cannabis industry.
What does copyright protect?
Copyright is a form of IP law that protects creative expression of ideas. Specifically, copyright protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.
The cannabis industry protects copyrights in a variety of ways. For example, the writing and photographs on a cannabis business’s website are copyright protected. This might include descriptions of a particular product or just the layout of the website itself. Physical media like labels, product tags, packaging, logos, instructional materials, and product design can all be protected by cannabis industry copyrights. Books that discuss cannabis production methods, such as Ed Rosenthal’s “Marijuana Grower’s Handbook,” also have copyright protection.
Is registration necessary for copyright protection?
No. A work of authorship is protected the moment it is created and “fixed in a tangible form.” A work is fixed in a tangible form if its expression is sufficiently permanent to allow it to be communicated for more than a transitory duration. Accordingly, registration is not necessary for copyright protection.
However, registration affords significant benefits, particularly in the context of copyright infringement. These benefits include:
- The right to sue for infringement;
- Automatic proof that the registrant is the rightful owner of the copyright, which shifts the burden of proof on the defendant to show that the registrant is not the rightful owner or that her work is not protected; and
- Additional remedies, like statutory damages and attorney’s fees, if the registrant prevails on her infringement claim.
Given the fact that copyrights are inexpensive and quick to register online, we recommend registration in most cases.
Are cannabis copyrights registrable and enforceable?
The Copyright Act contains virtually no prohibitions on what types of work are eligible for copyright protection, including cannabis-related work. Instead, the Copyright Act simply contemplates the level of originality in a given item. And on that point, the Act provides a decidedly low bar to registration, requiring only “a minimal degree of creativity.” For cannabis brands, federal copyright protection is available to protect most business creations, as long as those creations are sufficiently original to be copyrightable.
Nevertheless, it is important to remember that under the Copyright Act federal courts have exclusive jurisdiction over infringement actions. Therefore, like in patent infringement lawsuits, there is a potential risk that the federal illegality of cannabis would be raised in various litigation aspects and would impeded the enforceability of a cannabis copyright. To this date, no cannabis copyright infringement claim has been raised, making it impossible to determine whether cannabis copyrights are in fact enforceable.
What rights does copyright afford?
Copyright affords the holder the exclusive right to control his work through reproduction, distribution, public display and performance. Copyright also gives the holder the right to be compensated for the use of his work.
How long does copyright protection last?
Generally, works created by individuals are copyright protected for the life of the author, plus 70 years. Works created anonymously, pseudonymously, and for hire are protected for 95 years from the date of publication or for 120 years from the date of creation, whichever is shorter. Compared to the maximum shelf life of a patent, or terms of trademark registration, copyright protections last incredibly long.
How does copyright infringement occur?
Copyright infringement occurs when an individual uses another’s work without permission. Typically, permission is granted through a licensing agreement, which transfers some of the owner’s exclusive rights to another. In addition, the terms of the license agreement may limit the transfer of those rights to a specific period of time, to a physical location or to the means through which the rights may be exercised.
Note, however, that the legal doctrine of fair use, which promotes freedom of expression, permits certain unlicensed uses of copyrighted works, such as criticism, comment, news reporting, teaching and research.
As this post highlights, copyright affords valuable protection of certain intangible business assets. As such, every cannabis business should take the time to determine which of its assets are copyrightable and whether registration would give them a competitive edge. Given the ease of registration and the rights associated therewith, it’s a no-brainer.
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Author: Nathalie Bougenies