Common Copyright Problems: You Must Register Your Copyright!!

Today, i thought a bit about my resolutions for the New Year.  So I went to church, I went to the gym, I watched some football.  But one of my resolutions just started nagging at me just now-- it was the one about doing a better job posting on my blog.  And so, while I'm watching the Giants play the Niners, I want to work toward finishing up copyright law by briefly discussing a few of the more common problems experienced by ordinary folks. 

For you artists and authors out there, you must register your works with the U.S. Copyright Office!!! Many many times I am contacted by folks who believe that their artistic works have been copied.  There are things you can do in such situations, but, as I wrote in an earlier blog post,  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.  And 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" and won't be eligible to receive attorney fees.  

You see, if you sue someone for copyright infringement, you can collect damages based on your lost profits or the infringers unlawful monetary gain.   One big problem with copyright protection is that many instances of copyright infringement do not have any significant economic value.  For example, if I photocopy a book instead of buying a copy, the actual damages might be the cost of the book, clearly not enough to file a lawsuit.  So owners of copyrights might be discouraged from pursuing lawsuits against infringers, because lawsuits are expensive.  The US Congress fixed this by including the possibility of copyright owners receiving their legal fees and a set statutory amount of up to $150,000 for willful infringement.  The only criteria for being eligible for this possible award ( instead of the lower actual economic damages) is that the work must be registered with the United States Copyright Office before the infringement occurs.  Needless to say, the possibility of a larger damages award may make a big difference in determining whether a person can afford to file a lawsuit, and can result in the copyright owner having more leverage in any settlement negotiations. 

Lots of folks seem to think their work is protected if it s registered with one of the performing rights organizations, like ASCAP, or if it s registered with a commercial site like myfreecopyright.com.  You need to know that this is not the case.  While these other types of registration may have their place, they are not a substitute for registration with the Copyright Office.  So it's very important that your work is registered with the US Copyright Office.  

Another common problem experienced by the public at large is the possibility of being sued for the unauthorized downloading of video or audio content from the Internet.  We'll talk a bit about this situation next time.  If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  

International Copyright Protection

We've talked over the last several months about the basic aspects of United States copyright law.  I'd like to finish by talking a little about international copyright law.

The Berne Convention is the common name for the International Union for the Protection of Literary and Artistic Works.  Most developed countries are members of the Berne Convention, including the U.S. since 1989.  Run by the Word International Property Organization, the Berne Convention attempts to unify the treatment of copyright in each country.  Convention members must provide as strong protection to works originating in other member  countries as they do to works from within the country.  

The Berne Convention protects literary and artistic works.  Protection is automatic with no required formalities, and lasts generally for a term of the life of the author plus fifty years.  If a work of art originates in a member country, it is entitled to protection in all other member countries. 

The Universal Copyright Convention is administered by the United Nations.  It provides for less protection than the Berne Convention, but covers some different countries.  It protects literary, scientific, and artistic works.  There are some requirements, such as requiring that works be marked as copyright works.  

The World Intellectual Property Organization (WIPO) Copyright Treaty was ratified by the United States in 1998.  It has become very important in applying copyright law to the Internet.  This includes some important regulations and procedures regarding circumvention of technology used to protect intellectual property. 

 If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com .  We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.

Statutory Damages for Copyright Infringement

Last time, we talked about remedies for copyright infringement. A copyright owner can get an injunction, ordering the infringer to stop the infringing activity. He can have infringing copies impounded and destroyed. And he can get the actual damages he suffered due to the infringement of his copyright or violation of his moral rights.

One problem is that some copyright infringements don't actually result in a great deal in actual damages or profits.  To solve this problem, the Copyright Act has provisions that provide for a different remedy, called statutory damages. Copyright owners may elect to receive this type of damages instead of actual damages in certain situations. If elected, the copyright owner can receive an amount that the court considers fair, ranging from $750 up to $30,000 for each infringed work. The court will decide what amount within that range is fair, and will generally consider how much actual damage the copyright owner suffered, and how much the damages should be to deter others from infringing the same kind of copyright protected work. If the copyright owner can prove that the infringer did so willfully, the statutory damages can be increased up to $150,000 per infringed work. Similarly, if the infringer can prove that he was not aware and had no reason to believe his acts constituted infringement, the court can decrease the statutory damages to no less than $200 per infringed work.

One key point is that copyright owners must register there works with the Copyright Office within certain deadlines in order to have the award of statutory damages. The work must have been registered before the commencement of the infringement and must have an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement. The Copyright Act requires that there will be no award of statutory damages for (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Probably the most important take home message is that copyright owners must register their works within certain prescribed periods in order to have statutory damages available in the case of infringement. And without ths possible remedy, enforcing your copyright may not be economically feasible.

Next time, we'll talk a bit about international copyright protection. If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com .  We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.

Remedies for Copyright Infringement

So, if you have a copyright protected work, and another person copies it without your permission, you must file a lawsuit against the person who copied your work.  If you can prove that the person infringed your rights, what can the court do for you?

The first class of remedies a court is authorized to grant are known as injunctions.  The Copyright Act authorizes courts to grant both preliminary and permanent injunctions, ordering the infringing party to stop the copyright infringement and any violations of the author's rights of attribution and integrity in works of visual art.  In addition, the Copyright Act has provisions for impounding infringing copies and materials used to infringe.  Upon final judgment of infringement, these impounded things can be destroyed. 

The second class of remedies a court can grant are damages and profits.  The successful plaintiff in a copyright case is entitled to recover the actual damages he suffered due to the infringement of his copyright or violation of his moral rights.  Additionally, he is entitled to collect any of the infringer's profits that are attributable to the infringement that are not already accounted for in the plaintiff's damages.  Generally, the actual damages will be the sales lost by the plaintiff to the infringer due to the infringer if the infringer is a competitor of the plaintiff.  Alternatively, if the infringer is not a competitor, the damages may take the form of a royalty payment for the infringing activity. 

One important aspect of proving damages in a copyright case is that the copyright owner only has to prove the gross revenue of the infringer.  The defendant then has the burden of proving how much should be deducted from the gross revenue for his expenses and how much of the gross revenue is due to factors other than his infringement.

As you can imagine, some copyright infringements might not generate a great deal in actual damages or profits.  The Copyright Act has provisions that provide for a different remedy, called Statutory Damages, in such instances. We'll talk about these provisions next time.  In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com .  We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.

How Long Does a Copyright Last?

Lots of folks know a little about copyright law, and one of the things people are always interested in is figuring out when a copyright is no longer valid.  First, lets talk about when copyright protection starts.  Under the common law, copyright protection began immediately upon the fixation of the work in a tangible medium.  Protection under the U. S. Copyright Act depends on when the work was published.  Between 1909 and 1977, federal protection commenced upon publication with proper copyright notice.  Since January 1, 1978, federal copyright protection commences at the time of fixation, same as the common law rule. 

Figuring out when a copyright expires is a little tricky.  Under the 1909 Copyright Act, the term was 28 years, which could be renewed for a second 28 year term.  In the revision of the Copyright Act that became effective on January 1, 1978, Congress decided to extend the terms of those works that were still under copyright protection.  It simply added 19 years to the second term, making the second term 47 years.  This period was extended again in 1998 by adding an additional 20 years to the second term.   

For works created on or after January 1, 1978, copyright endures vor the life of the author plus 70 years.  In the case of joint authors, the copyright duration is tied to the life of the longest living author, to which the 70 years is added.  If a work has an anonymous or pseudonymous author, the copyright endures for the shorter of 95 years after first publication or 120 years after creation of the work.  For works made for hire, the same term applies-- the shorter of 95 years after first publication or 120 years after creation of the work. 

If a work was created before January 1, 1978, but not yet published, the same terms apply, with the added option of protection until at least December 31, 2002, if that was longer than the other calculated term.  In an effort to encourage publication, those unpublished works that were published by December 31, 2002 are now protected under an extension of term through December 31, 2047. 

Next time, we'll refocus on infringement, and discuss the remedies for copyright infringement.  If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com .  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals

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 JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

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 JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.