When copyright protection was created in the late 1700s, it was for books, poetry, and other written works. After all, Thomas Edison didn’t invent the phonograph until almost a century later, and sound recordings weren’t commonly made until the 1900s. But as technology allowed new ways of disseminating creative material, copyright law has evolved to protect the myriad forms of media. Today, there are copyrights for everything from musical compositions, and sound recordings on vinyl (phono record), analog tape (reel to reel and cassette), compact disc and various digital media forms, movies, videos, architectural designs, photographs, computer software, and materials specifically created for the web, and other online platforms.
Copyright protects original works of authorship and the original expression of ideas. Copyright does NOT protect ideas themselves, however. Ideas are protected by patent law. Copyright protection differs from patent, which protects useful ideas and inventions (though materials describing patentable materials can be copyrighted), and copyright differs from trademark, which protects the use of words, phrases, symbols, designs, and even colors that have acquired a close association with a particular product, company, or specifically identifiable source. Patents and trademarks are the exclusive dominion of the U.S. Patent and Trademark Office (USPTO). The U.S. Copyright Office, on the other hand, is its own sovereign entity, which is totally separate from the USPTO.
Last year, the U.S. Copyright Office processed more than 468,000 applications for which it issued over 414,000 copyright registrations. The overwhelming majority of those applications were filed electronically, and unlike patent applications (and to a slightly lesser extent, trademark applications) many, if not most copyright applications are filed by the author or creator, rather than an attorney. The filing fee for a copyright application starts at just $35, for a single work/single author, but can cost many multiples of that, depending on the number of elements to the work, and how many co-authors contributed. For example, a nautical designer can pay as much as $400 to register the various design components of a vessel’s hull.
Copyright law originates in the U.S. Constitution, but the laws we use today are primarily the U.S. Copyright Act of 1976, and the Digital Millennium Copyright Act of 1998 (a.k.a. the DMCA). Copyright law protects any original creative work that is fixed in a tangible medium of expression. That’s just white wig speak meaning that it has to be (a) an original creation, and (b) written on paper, recorded in a media file, etc. (which is what they mean by being fixed). Once you have something that meets those two criteria, you automatically have exclusive rights to:
- Produce copies or reproductions, and to sell those copies (including, electronic copies)
- Import or export the work
- Create derivative works (e.g. sequel, prequel, or spinoff)
- Publicly perform or display the work
- Publish or broadcast the work
- Sell, transfer, or license these exclusive rights to a third party
Registration isn’t required to establish federal copyright protections. You don’t need an attorney to register a copyright and as a matter of principle, it’s a good idea to familiarize yourself with the registration process by personally registering your own copyrights, as you embark upon your creative endeavors. Aspiring songwriters making ends meet as baristas are not likely to be able to afford or need legal assistance to help them register for copyrights on the first songs they pen. It isn’t difficult to do. People involved in imagining original materials owe it to themselves to learn the basics of how to protect their creations.
It is necessary to seek registrations for new works or when materials are substantially altered or updated, such as a redesigned website.
While a non-attorney can apply for a copyright registration, properly registering a copyright establishes who could later become crucial in a fight to establish an individual as the rightful originator of a work. A person must have registered to bring a lawsuit for copyright infringement.
If you have to legally assert your copyrights against infringement, it’s easier if your materials have been registered with the U.S. Copyright Office. I look at taking the time to register copyrights as the difference between riding on the express train or the local; a successful infringement claim will come a lot faster and easier with a valid copyright registration in hand. Better yet, by having your copyright registered, you just might be able to avoid having to go to court in the first place,that is because (smart) people don’t want to litigate copyright infringement cases where the work was previously registered.
Registration also creates a public record of a person’s claim to authorship of original materials. Works can be registered at any time, but in most situations, registrations are NOT retroactive. So, if you register a copyright after it was infringed, and then file a lawsuit for copyright infringement, unless an exception applies, you won’t be entitled to the same relief afforded to registered copyrights.
What relief is available for infringement of registered copyrights that is unavailable for unregistered copyrights? When a copyright is registered, if you have to sue for copyright infringement, you won’t have to prove the value of the work. That is because registered works are entitled to statutory damages, which are set forth in the Copyright Act. If your work is registered, all you have to do is prove that somebody unlawfully copied it, and the minimum amount of damages the court will award is $750 per work infringed. For willful infringement, the award of statutory damages could be as high as $150,000 per work, depending on the circumstances. But the biggest benefit to registration is that as the prevailing party in a suit for infringement, you are automatically entitled to an award of attorney’s fees.
Without registration, you’ll have to pay your own legal fees, and you’ll only be entitled to actual damages (e.g., the amount of lost profits you can prove are attributable to the infringement), which are oftentimes difficult to prove, especially when the subject matter is a creative work of art.
People should seek legal guidance on registering copyrights when their materials begin to show real commercial value. Legal assistance may also be indicated if a person cannot navigate registration themselves because of problems with, for instance, understanding the terminology involved.
More complicated issues may arise from registration practices, too. For example, if you want to register a work you co-authored or contributed to, or a collection of songs, videos, drawings, etc., a computer software application, or the entire design and contents of a website, these are situations when you should at least consider hiring a copyright lawyer, or at least consulting with one to make sure you don’t make any fatal mistakes.