A copyright is a bundle of legal rights possessed by the creator or author of literature, art, or other means of conveying ideas and information (otherwise known as a “work”). The creator of each work has the right to distribute to the public, reproduce, sell, perform, display, and create new derivative works as part of this bundle of rights. These rights are exclusive unless the author chooses to transfer them (and he or she can transfer one, many or all of these rights).
A copyright comes into existence as soon as the author creates the work. In fact, it is not necessary to do anything else to possess these rights. However, if you want a right that is enforceable in court, you probably should think about protecting your works via registration with the Copyright Office. Taking a few simple steps can add a spark to your bundle of rights.
Limitations on Copyrights
Only written words,images or other tangible expression of ideas (and not ideas themselves or facts) are protected by copyright. To have it any other way would hinder the free flow of ideas, which copyright law sets out to protect and encourage – at least in theory (many would argue that current copyright law places unreasonable restrictions on the free flow of ideas, but let’s leave that discussion for another day). Building on the idea of free flow of information, the doctrine of “fair use” allows others to use and copy from copyrighted works for purposes of teaching, research, reporting, etc. It does not allow others to profit from or diminish your rights simply to use your work for these purposes. Fair use is a very murky doctrine, and a lot of copyright litigation is geared toward determining whether a use was fair or infringing.
Copyright notice consists of the copyright symbol (shown here ©) along with the date(s) of publication and the name(s) of the author or entity that owns the work. This establishes to the public that the work in question is copyrighted. Interestingly, unlike trademark or patent rights, note that the copyright symbol can be used at anytime with or without registration or notice to the Copyright Office.
While not required, there are very good reasons to always include copyright notice on any published work regardless of whether or not it is registered with the Copyright Office.
First, notice itself may deter potential deliberate infringement and also mistaken infringement by persons who believe the work is not copyrighted due to the missing notice.
Second, copyright infringement lawsuits are expensive and generally only worth pursuing if the specter of substantial damages looms. One way to recover substantial damages is proving the infringement was deliberate. Proving infringement was deliberate can be difficult if there is no notice.
Finally, the 1988 Berne Convention provides international protection throughout most of the industrialized world, but some of the signatory countries will only allow for this protection if notice is given. So notice is a very simple and critical first step in protecting your valuable expression of ideas.
Copyright Registration: Necessary?
As explained above, copyright protection begins as soon as a work meeting the requirements is produced. Simply placing copyright notice on the work provides even more protection for you work. Copyright registration is the act of recording your copyright for public record; to register with the Copyright Office one must complete the required form and submit it along with 2 copies of the work being registered and the appropriate filing fee.
You may now be asking…why do I need to register my work if copyright levitra automatically goes into effect when I create the work? There are a number of good reasons for registering your work and making sure that you are fully protected from infringement.
- Registration is a prerequisite for an infringement lawsuit
- Expedited registration is about 10x as expensive
- If you are not registered before infringement occurs, you may lose your right to statutory damages under the Copyright Act
The Copyright Act allows for the recovery of up to $150,000 dollars in damages, as well as attorneys fees and court costs that you can elect to receive in lieu of actual damages. This is statutory damages, and works greatly to your advantage because in many cases the actual damages suffered from copyright infringement are small and unpredictable such that justifying litigation is much more questionable.
By registering before infringement occurs, you dramatically increase the likelihood that it is economically feasible to protect your copyright via litigation.
What Should You Register?
As previously mentioned, it is the words or other mediums that express ideas and facts contained within the work that are protected by copyright; the ideas and facts are not protected in their own right. Rather, It is the means by which the idea is conveyed by the author or creator that is protected.
In order to register the work, the work must be fixed – or recorded – in some fashion, be it written, photographed, videoed, recorded, or even saved to a computer. The work must be original – that is – created by the author and not simply copied (although please note that the work need not be “groundbreaking”). Finally, the work needs to have minimal creativity. The requirements for creativity are indeed very minimal. In fact, catalog and advertising copy, instruction manuals, and even some blank forms used to convey information are considered “creative” enough to be registered.
In this sense, anytime you create a work that meets the above criteria it is a good idea to, at a minimum, include copyright notice. To go one step further and register (which entails paying a fee) is almost universally a good idea as well, especially when the work is being disseminated to the public. Below is a non-exhaustive list of some things that you will definitely want to affix copyright notice to and may consider registering as well:
- Song lyrics (with or without music)
- Reference books and other technical writing
- Instructions in any medium
- Speeches, lectures, and interviews recorded in any medium
- Articles in magazines, newspapers, newsletters, journals, or other periodicals
- Leaflets and pamphlets
- Catalogs, directories, price listings, and other compilations of specific information
- Advertising copy
- Blank forms that convey information
- Computer software and programs
- Video and photography
- Pictorial and graphic work
- Architectural work and drawings
How Long Will Copyright Last?
Once you register a copyright it is protected for a long time. Works created after 1977 by individuals will last for the life of the author plus 70 years. Works that are created during 1964-1977 last for 95 years from the date first published. The law is dynamic and the trend is definitely toward longer registration periods (for better or worse).
The above information and analysis is meant only as a brief overview and introduction to copyright, it is by no means a full explanation of this broad and complex area of law. Like any area of law there are many subtle nuances and situations that may arise, not all of these are covered here. If you have questions about copyright, please contact us at VeriTrademark.