Do You Have an Implied Copyright License?

February 24, 2012, 04:21 PM

A recent opinion issued by the federal court in Norfolk explores the issue of whether a company has an implied license to use otherwise copyright protected work allegedly written by one of the companys clients. In a Report and Recommendation issued on February 13, 2012 in Innovative Legal Marketing, LLC v. Market Masters-Legal, Civil Action No. 2:10cv580 (E.D. Va.), Judge Stillman ruled that the defendant, Market Masters-Legal, had an implied nonexclusive license to use an email script allegedly written by a client. In order for an implied nonexclusive license for use of an otherwise copyright protected work to exist and be enforceable, the following elements must be established: (1) the licensee requests the creation of a work; (2) the licensor makes that particular work and delivers it to the licensee who requested it; and (3) the licensor intends that the licensee copy and distribute his work. Both parties in the Innovative Legal Marketing case have until March 1, 2012 to file objections to the Report and Recommendation issued by Judge Stillman. Any objections which are filed will be reviewed by Judge Smith before a final decision is issued on the dueling summary judgment motions filed in the case. —Kristan B. Burch