A copyright is but one form of intellectual property protection available to the public. The United States Constitution provides for federal copyright protection under Article I, Section 8, Clause 8. In the most basic terms, a copyright is established by the act of an author fixing his or her work in a tangible medium of expression. 17 U.S.C. § 102(a). In general, this has been interpreted as reducing the work to a relatively stable form of expression and placing it in a relatively stable and permanent embodiment. Accordingly, the work must be recorded or written in some manner in order to obtain federal statutory copyright protection — one’s mere ideas cannot be protected under federal copyright law — only the EXPRESSION is eligible for copyright protection.
Although placing the public on notice of one’s copyright is no longer technically required under federal law, it remains common practice and still provides great benefit to the copyright owner and the public. The notice requirement was eliminated effective March 1, 1989, the effective date of the Berne Convention Implementation Act. Although notice of copyrights became permissive and copyrights can no longer be forfeited by omitting the proper notice on or after March 1, 1989, any copyrightable works created prior to that date must still have complied with the law in effect at the time the copyrightable work was created. Accordingly, in many instances the notice given on the copyrighted item remains a requirement if the owner wishes to maintain their rights.
Many of us may have seen copyright notices and may not even know that we have. Copyright notices commonly take the form of a © followed by information about the date of copyright and owner. Many copyright owners choose to append information, instructions, and disclaimers after a copyright notice although this does not directly affect the copyright in the item. This is commonly done since the location of the copyright notice also serves as an opportune and convenient location for other legal notices. In certain instances the legal notices accompanying the copyright notice may be quite lengthy as special circumstances may require additional information. Such circumstances may include: attribution of trademarks used within the copyrighted item to their rightful owners, instructions regarding the use, distribution, or copying of the item, and special information regarding use by governmental agencies or departments. Accordingly, although notice is no longer required, it is commonly provided as a means for the copyright owner asserting to the public that they possess the copyright and are likely to defend such copyright if unlawfully reproduced or infringed and provides an opportunity to fully set forth additional legal information regarding the content and use of the copyrighted item.
Currently, there remain two exceptions for which registration of a copyright is required to establish one’s rights — although for enforcement of a copyright, registration is required. First, all works published with notice prior to January 1, 1978, must be registered and renewed during their first 28 year term in order to maintain copyright protection. 17 U.S.C. §304(a). Second, a copyright registration is a required step in preserving a copyright when a copyright notice has been omitted from more than a relatively small number of publicly distributed copies of the work. 17 U.S.C. § 405(a). Accordingly, some works continue to require copyright notice and registration if the copyright owners are to retain their rights in the copyrighted product.
Advantages of Copyright Registration
Although copyright registration is permissive and not a requirement for maintaining one’s rights to a copyright, the registration statutes provides certain advantages to copyright owners who obtain registrations. Several of the advantages include:
- Registration establishes a public record of the claim of copyright;
- Registration secures the right of an owner to file an infringement suit for works whose country of origin is the United States, 17 U.S.C. § 411;
- Registration establishes a prima facie validity of the copyright, 17 U.S.C. § 410(c);
- Registration makes available a broader range of remedies in an infringement suit, thereby allowing recovery of statutory damages and attorney’s fees, 17 U.S.C. § 412; and
- Recordation of a registration of a document in the Copyright Office provides constructive notice of the facts stated in the recorded document, 17 U.S.C. § 205(c).
Additionally, the U.S. Supreme Court decided a case in 2019 holding that a party must obtain a registration from the U.S. Copyright Office prior to filing suit for copyright infringement. Although the registration process can take over a year, there is an expedited processing procedure, available for an extra fee where compelling reasons can be established. Accordingly, not only is registration strongly advised and required in order to bring an infringement suit, but also once registration has taken place, a law suit can be brought for all infringing acts occurring before and after registration while to some degree also reducing the required burden of proof on the copyright owner and expending the remedies available to the copyright owner.
Finally, assuming one files to register their copyright soon after crating the copyrightable matter, by having a registered and recorded copyright well in advance of any dispute or infringement, some believe that you may make it more likely that an infringing party will opt for settlement as your rights to the copyright have been established in advance.
Registration of a copyrightable work may be accomplished by the copyright owner or their attorney. In general, a registration comprises a properly completed application form, a non-refundable fee for processing each application, and deposited copies of the work for which registration is being requested. In the United States, copyright registrations are filed with the U.S. Copyright Office which is a department of the Library of Congress. Once a proper application is filed, copyright registration will be effective on the date the above outlined requirements are received in acceptable form in the U.S. Copyright Office.
Foreign copyright registrations are managed by the respective copyright offices established by each country. For questions or further information on copyright protection in foreign countries, please contact us by e-mail, or contact us by snail mail or telephone, and we will advise you on further specifics or provide contact information for our foreign associates who specialize in copyright law for a given country.
In general a copyright notice consists of affixing the name of the copyright owner, the date of first publication of the work, and a symbol in a noticeable location on the work. For example, “© 2020 Lieberman & Brandsdorfer, LLC.” However, as mentioned earlier, all works distributed on or after March 1, 1989, do not require notice in order to obtain a copyright although such notice may be beneficial. Since March 1, 1989, notice has been considered permissive at the discretion of the copyright owner, but is recommended in view of potential copyright infringement, and legal actions arising therefrom. Accordingly, the U.S. copyright laws recommend marking works of authorship and registering such works with the U.S. Copyright Office, and provides benefits to the author for such actions in the event infringement does occurs, including the ability to more rapidly bring a law suit since a registration will be in-hand.
The Copyright Act, and the case law that has evolved, require “independent creation” and “a modest quantum of creativity” in order to establish the necessary originality of copyright protection. An original work is one that is independently created and is not copied from another. In addition to independent creation an author must demonstrate at least a minimal amount of creative authorship. Accordingly, it has been held that the creativity of an author, not the amount of effort, is determinative of originality. Alternative degrees of copyright protection may be available if you utilize prior works in creating a new or unique copyrightable item.
For questions or further information regarding the copyrightability of a product or potential infringement of an other’s copyright, please contact us by e-mail, or contact us by snail mail or telephone.