The distinctions between copyrights, patents, and trademarks is often confusing and misunderstood, even by business people that regularly deal with intellectual property. Here we will provide an explanation on the basis for copyright protection, what can be protected under U.S. Copyright laws, and the benefits of registering your work with the U.S. Copyright Office.
What Is Protected Under U.S. Copyright Law?
A Copyright is a form of protection for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. In short, U.S. Copyright law protects original works of artistic expression such as movies, books, songs, lyrics, computer programs, paintings, photographs, graphic designs and other similar works.
Do I have to register to get copyright protection?
No. Once registration was required to protect a work under U.S. Copyright law. However, the current law is explicit: “registration is not a condition of copyright protection.” 17 USC §408(a). Copyright protection attaches as soon as “original works of authorship” are “fixed in any tangible medium of expression.” 17 USC §102(a). In other words, your words, images, code, music, paintings are protected as soon as you write them down, paint them, record them on film, or otherwise.
Then why should I register my work under U.S. Copyright law?
Registration gives you several additional protections not afforded to unregistered works. For instance:
- You must register your copyright before you can sue someone in court for infringement. 17 USC §411(a).
- You must register your copyright within 3 months of the date of first publication (or, in the case of unpublished works, before the end of the first month after initially learning that your work was infringed) to be entitled to statutory damages and attorney’s fees (more on this below). 17 USC §412.
- Registration made before the end of five years after the date of first publication constitutes prima facie evidence in court that a copyright is valid and that all the facts stated in the certificate of registration are true. 17 USC §410. This shifts the burden to the defendant to show that your copyright is not valid or that you are not the owner, a valuable shift in the burden of proof of the parties.
- Registration provides notice to all that you own the copyright, making it more difficult for infringers to argue that they infringed “innocently” or “unknowingly.”
- Registration makes it easier to transfer or assign rights in your copyright which is critical in some industries wherein you intend to sell or license your work for financial gain (e.g., authors who author a book and wish to sell it, musicians who record music and wish to distribute it for sale, etc.).
When is the deadline to register a copyright?
You can register a copyright anytime during its statutory lifetime which is currently the life of the author plus 70 years. However, as set forth above, you can obtain certain benefits only by timely registration.
What are statutory damages?
When someone infringes your copyright you are entitled to “actual damages” and “profits of the infringer that are attributable to the infringement” 17 USC §504(b). Proof of these forms of damages are highly subjective and often makes pursuing a legal remedy not worthwhile.
However, a copyright registrant may elect statutory damages in lieu of actual damages. 17 USC §504(c). Statutory damages ranges from between $750 to $30,000 per work and can even go up to $150,000 per work if the infringement can be proven to have been willful. Additionally, you may get attorney’s fees and costs at the court’s discretion. 17 USC §505.
How do I register my copyright?
The U.S. Copyright Office, part of the Library of Congress, is the official registrar of U.S. Copyrights. The cost to register a work varies on the filing timing- if the registration is needed within a few days, there is an expedited fee for several hundred dollars. Given the complexities of the process and the ability of defense lawyers in copyright actions to invalidate registrations that contain even the slightest of errors it is recommended that you seek assistance from an experienced service to register your copyrights.
Registering your works is affordable and, if done properly, grants you significant additional rights making it easier and more lucrative to enforce against infringement which may occur. If you do not do not register your copyrights as we have discussed you may lose certain statutory rights against infringers lessening the value of your work. Moreover, if you intend to sell or license your work in whole or in part registration makes it easier to do so and is often a prerequisite for companies who buy, license, or distribute works (e.g., publishers, record labels, etc.).
Accordingly, think of a copyright registration as an investment in your work that can result in significant benefits both by assisting to stop infringement as well as making your work more marketable for potential distribution thereof.
As always, if you have any questions regarding copyrights, please feel free to reach out to our attorneys.