Friday, August 26, 2011

Copyright Registration: How? Why?

So copyright protection arises upon fixation of a creative work in a tangible medium.  So why should you bother with registration with the Copyright Office?  And how do you do it?

First, why get a work registered with the Copyright Office?  There are actually several very good reasons.  It is essentially impossible to rely upon the courts to protect your copyright in the absence of registration with the Copyright Office.  U.S. copyright owners must register their copyrights before they can bring a lawsuit for copyright infringement.  Note, however, that this requirement can be met by registering the copyright after the infringement.  But this sort of late registration is discouraged because certain remedies under the law are reserved for those who have their works registered early.  If a work is not registered before the alleged infringement, or within a short period of time following publication of the work, the owner of the copyright cannot receive what are known as "statutory damages".  Further, late registrants are not eligible to receive attorney fees.  I'll discuss these remedies later.  For now, suffice it to say that statutory damages and attorney fees can be very important in copyright litigation.

So you need to register your work to file a lawsuit and get statutory damages and attorney fees.  What do you have to do?  The owner of a copyright may register his work with the Copyright Office at any time.  Such registration includes completing an application and filing it with the Copyright Office along with copies of the work.  There is no rigorous examination of copyright applications, but those applications that are not in compliance with the requirements are rejected.  If the work is published, Copyright regulations require submission of copies of the work within three months of publication to the Library of Congress as well.

Next time, we'll talk about the duration of copyright protection. If you have any questions about copyright law, email us or post them on the blog.  The email is  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Tuesday, August 23, 2011

Copyright Notice

Lots of folks think that the way to ensure that their creative work is protected by copyright is to include some notice that it is copyright protected, or including the © in the work.  But requirement of such a notice seems inconsistent with the idea that creative works are copyright-protected when they are fixed.  That said, in the United States, copyright notice has, at various times, been very important in protecting one's rights.  Different versions of the copyright law had different requirements.  It is important to know these differences when looking at older works, as the law at the time of publication applies with regard to notice requirements. 

Copyright Act of 1909:  Under this older scheme, applicable through January 1, 1978, common law copyright protection applied before a work was published.  Upon publication, there was no common law protection, and protection depended upon compliance with the statutory requirements.  The statute required that all authorized copies of a work carried proper notice of copyright.  This requirement was fairly strictly construed.  If even a few copies of a work had improper notice or no notice, then all copyright protection in the work could be lost. 

Copyright Act of 1976:  This scheme applies to works published between January 1, 1978 and March 1, 1989.  In this scheme, federal statutory protection began upon fixation of the work in a tangible form.  Notice was required for all visually perceptible copies of a work that were publicly distributed.  As before, failure to do so could result in loss of copyright protection.  However, if certain conditions were satisfied, the copyright protection could be saved in spite of the improper notice.  Copyright protection could be saved if only a small number of copies were distributed without notice, if the work was registered with the Copyright Office within five years of publication and efforts were made to add notice to copies distributed after the omission of notice was discovered, and if the copies of the work were distributed in direct violation of an express agreement in which the copyright owner insisted that the copies include notice.  If a copies lacked notice, and even if copyright protection was saved, innocent infringers who relied upon the lack of notice as an indication that the work was in the public domain were excused from paying damages for their infringement. 

Berne Convention:  This is the current scheme, applicable since March 1, 1989.  The Berne Convention is an international copyright protection scheme.  Most foreign countries have long shunned the need for copyright notice and other formalities.  In order to join the Berne Convention, the U.S. had to eliminate its notice requirement.  Accordingly, notice requirement is now strictly voluntary.  However, the U.S. code attempts to encourage the inclusion of the voluntary notice by providing that if proper notice is included on the published copy of a work to which an accused infringer had access, the defendant could not use an innocent infringer defense to mitigate actual or statutory damages.  Thus, including notice can be very important in any copyright litigation.

Next time, we'll talk about the requirements for copyright registration, and why it is worthwhile. If you have any questions about copyright law, email us or post them on the blog.  The email is  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Tuesday, August 2, 2011

Divisibility of Ownership of Copyright

As you know, copyright law in the U.S. protects a bundle of exclusive economic rights.  These include the right to reproduce the work, the right to prepare derivative works, the right to distribute copies of the work to the public, the right to perform the work publicly, and the right to display the work.  Each of these economic rights are generally owned by the author of the work.  But the U.S. Copyright Act provides that the different rights can be assigned to others.  In fact, the author can even subdivide the rights to others.  As an example, the author of a book owns the right to make derivative works.  He could assign a part of this right, such as the right to adapt the book into a movie, to one person, and he could assign another part of that right, such as the right to publish a foreign language translation of of the book to another person.

So how does a copyright owner transfer his rights?  All transfers of exclusive copyright ownership must be in writing.  Note, however, if the transfer is merely permission to do something protected by copyright law, but not an exclusive right, it is just a license, and may be oral.

So does a work of art have to have a notice of copyright in order to be protected by United States copyright law? We'll talk about that next time.  If you have any questions about copyright law, email us or post them on the blog.  The email is  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.