In a previous article, we discussed U.S. federal and common law rights for trademarks. Similarly, there are common law copyrights and federal copyright registation. This article discusses these rights as well as the associated cost and procedures.
Basis for Copyright Protection
Copyrights are federal rights granted by statute and protect “original works of authorship”. Unlike Trademarks (which protect consumer perception) these rights vest with the author of the material and do not change based on recognition by the public. In this way copyrights are much more like property rights in land or goods. Copyrights are provided for under Title 17 of the U.S. Code and gives the owner of the copyright the exclusive right to:
- reproduce the work by making copies or audio recordings
- prepare derivative works based upon the work
- distribute copies or audio recordings of the work to the public by sale or by lease/license
- display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
- perform the work publicly by means of a digital audio transmission.
These rights, however, are subject to limitations, including fair use and compulsory licensing. (More regarding these limitations in a later article.)
Common Law Copyright
According to the U.S. Copyright Office, “copyright protection subsists from the time the work is created in a fixed form.” Ownership of the copyright immediately vests with the author and any subsequent owner must derive his rights through the author. This means that copyrights are automatic, and require no action on the part of the author. No filing is required, but there are some benefits of federal filing (see below).
Despite the immediacy of copyright protection, a right holder should always be aware that authorship must be proved to be enforced. Therefore, good documentation is essential, and filing for federal recognition is helpful. Since 1978, “publication” is no longer an essential step to copyright protection. However, works that are published in the United States must be deposited with the Library of Congress or fines and other penalties will occur (copyright protection is unaffected). Published works should include a copyright notice to inform the public that it is a original and protected work.
Federal Copyright Registration
Since we’ve already determined that registration is not required, why should anyone file for registration? Per the Copyright Office:
- “Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
- If made before or within five years of publication, registration will establish [sufficient but contestable] evidence in court of the validity of the copyright and the facts stated in the certificate.
- If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
- Registration allows the owner of the Copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.”
I have added emphasis to items which can be of greatest importance to authors and copyright holders. Statutory damages and attorney’s fees are available for federally registered copyrights, but it MUST be done within three months of publication. Also, the low filing fee for copyrights, which if done electronically is currently $35, is a great benefit of this form of protection. Indeed, copyrights are by far the most affordable of federal IP registrations.
As with all my articles unless otherwise stated, this article was written based on U.S. law. For information about how works can be protected using copyright in other countries, please visit the U.S. Copyright Office’s page.
For a more exhaustive examination of Copyright Basics, click here.
For the current Copyright Office Fees, click here.