The methods of protecting intellectual property are patents, trademarks, copyrights and trade secrets. See my introduction to patents, trademarks & copyrights. I also compare trade secrets with patent protection. This article focuses upon copyright registration. This article is intended to provide a guide to how to register your copyright. The regulations and rules for filing works for copyright registration have recently changed. One goal of this article is to explain these changes, particularly as they apply to online registration.
A common law copyright arises from the moment the work is created. Writings, photos, film, video, songs, recordings, images, drawings & paintings all can receive copyright protection. Computer software can also be copyrighted. Each work can be marked © Jane Doe, 2019. (Of course Jane Doe is merely a place holder for the author’s name.)
The process is relatively simple (except of course for the first time you attempt it) and the registration fee is $35.00. Questions can be directed to the Copyright Office via (202) 707-3000 or 1-877-476-0778 (toll-free), or online at www.copyright.gov/help.
When in doubt, in pays to register your copyright. As indicated above, the process is intended to be relatively easy and is inexpensive.
The copyright registration process has recently changed. Electronic registration is encouraged. Note there are now six categoriesof works that can be copyrighted, i.e., Literary Works; Performing Arts; Visual Arts; Other Digital Content (e.g., computer programs); Motion Pictures; and Photographs.
As an overview, there is now a single electronic form that can be completed on line. Questions that must be answered on the form include “Type of Work” (see six categories listed above), Titles, “Publication/Completion” (see note below), Authors, Claimants (i.e., who is to own the copyright), Limitation of claim (i.e., portions of the work that are to be excluded due to a previous registration), Rights and Permissions, Correspondent, etc.
As a general matter, the person that created the work is the copyright owner. This person is termed the “author”. However, if the work was made by an employee, the employer is deemed to be the owner of the copyright.
Ownership of the copyright can be sold as can any other property. Portions of the rights held by the copyright owner can also be licensed to a third party, e.g., a publisher obtaining the right to copy and distribute copies of the work. If the work is a play or dance, the right to perform the work can also be licensed.
Work for Hire
If the author created the work for the benefit of another, then the ownership may transfer to the intended recipient. This is occurs where there is a written agreement stating that the work is being created as a “work for hire”. This is very important. If you are contracting with a third party to create photos, a website, etc., you must have a written agreement clearly stating that you are to own the copyright. This can be stated in short hand by including the phase the project is a “work for hire”.
Registration and Statutory Damages
There are very real advantages to registering your copyright. Perhaps the most important is the ability to claim statutory damages in the event of copyright infringement. It is not necessary to prove actual damages in order to claim statutory damages. Statutory damages can be as great as $150,000.00 for a single intentional infringement. Your entitlement to minimum damages without showing actual loss creates a large incentive for the potential infringer tonot copy your work.
Again, statutory damages are available if the copyright was registered prior to the infringement. As a general matter, copyright registration should be commenced no later than 3 months after the work is published.
Publication is an unrestricted showing or sale of the work. It is important to file for registration prior to the first publication of the work. There is a three month grace period to file after the first publication.
Copyrights can be registered electronically. This is encouraged.
Necessary information required in the electronic application includes: the title of the work, year the work was completed, date and nation of first publication (see definition above), name of the author, whether the work was made for hire (see discussion above), name and address of the party claiming ownership, if the ownership claimant is not the author, submit a brief statement of how ownership was obtained, and description of the work.
The application form also requires that the applicant certify the he/she is the author, copyright claimant, or owner of exclusive rights or authorized agent and that the information contained in the application is true to the best of the applicant’s knowledge. A false statement can subject the applicant to a fine not to exceed $2,500.00.
Note if the applicant is claiming authority due to a written transfer, a copy of the transfer document must be furnished.
Providing copies of the Work
If filing electronically, you can upload a copy (make sure it is in an acceptable format) if the work has not yet been published or it is published only in electronic format. It may be necessary to mail a copy of your work if it has been published in a “hard copy” format and it is necessary to submit the best editionor you are required to submit the work as first published.
If you are required to mail copies of the work to the Copyright, the general requirement is that two copies are required. Further explanation is available at the Copyright Office website regarding deposit requirements.
Although a copyright occurs the moment a work is created, registering your copyright to your creative work is a very good idea. There is almost reason not to. The process is relatively inexpensive and can be performed on line. I have provided a number of helpful links.
Watch for my next article regarding the steps needed to copyright software.
Copyright David McEwing, 2019