What is a copyright?
Copyright is a form of intellectual property which applies to original works of authorship that are fixed in a tangible medium. Copyright grants the creator an exclusive legal right to determine when and under what conditions an original work can be used by others. A work is considered original if it is independently created by an individual and involves at least some degree of originality. Having an idea is not enough to be granted copyright protection; it must be fixed in a tangible medium of expression. It is important to note that copyrights only protect original expressions – the expressions through which original ideas or information have been manifested. As a result, techniques, facts, concepts or ideas alone cannot be copyrighted. For example, the concept of the often described “wise old man” cannot be copyrighted, but the specific description and characteristics of a fictional character, such as Gandalf, can be copyrighted. Under the Copyright Act, a work is considered fixed in a tangible medium when, under the authority of the author, “it is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated…” For example, a literary work is “fixed” when it is written down, and a musical work is “fixed” when its music and lyrics are written down, or when the song is recorded. Typical copyrightable works include literary, musical and dramatic works, motion pictures, and sound recordings. A work is automatically copyrighted as soon as the work is created.
Once a work is copyrighted, there are five rights granted to a copyright owner: 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 copyrighted work publicly, and the right to display the copyrighted work publicly. The owner of the work is typically the author, or creator, of the work. An exception to this is the work-for-hire doctrine, through which a work is created within the author’s scope of employment and therefore the work belongs to his or her employer. It is important for authors to secure protection of their work if they hope to prevent the widespread use of such work by others without their permission.
What is the benefit of a copyright registration?
Although works are automatically copyrighted upon creation, there are a variety of benefits to copyright registration, that are otherwise unavailable if you do not register your copyright. These benefits include that the owner of a copyright, if the copyright is infringed, can sue for infringement of the work and obtain statutory damages and attorney’s fees. To sue for infringement (even if the infringement has already occurred), a work must be registered with the U.S. Copyright Office. However, in order to obtain statutory damages or an award of attorney’s fees, the work must be registered prior to the infringement, or, if the work is published, the work must be registered within three months of its publication. In addition to the ability to sue and to be compensated for infringement, registration also creates a public record of, and legal presumption of, ownership. In an infringement suit, the copyright owner has a duty to prove that he or she is the rightful owner; however, registration shows the validity of the copyright, and courts have held that registration before, or within 5 years of publication of a work, establishes prima facie evidence of the validity of the copyright, establishing a presumption of ownership. In other words, registration shifts the burden of proof of ownership to any party who is challenging said ownership.
For more on bringing a copyright infringement case, check out our blog post https://www.romanolaw.com/2019/04/01/when-has-copyright-registration-been-made-such-that-an-action-for-infringement-may-be-brought/.
How do you file a copyright registration?
To properly register, an application must be filed with the U.S. Copyright Office, which accepts applications both online and by mail. Along with a completed application, an applicant must also provide a nonreturnable copy or copies of the work to be registered, and a nonrefundable registration fee (for standard processing times, $35 – $55 online; $85 by mail). The author of the work may either register the work under his or her name, or remain anonymous using a pseudonym. The length of time to process an application and receive a certificate once approved varies, and timelines can be checked on the U.S. Copyright Office website.
How long does copyright protection last?
There are different lengths of time for which copyright protection lasts based on when the copyrighted work was created and published. For works fixed after January 1, 1978, the term of the copyright will span the life of the author plus an additional 70 years after the author’s death. If there are multiple authors, the term lasts for 70 years after the last surviving author’s death. For works made for hire, pseudonymous works, and anonymous works, the duration of the copyright registration is 95 years from publication or 120 years from creation, whichever is shorter. There is no option for renewing copyright protection for works created after 1978. For works published January 1, 1964 to December 31, 1977, the duration of copyright protection is 95 years from the date of publication. For these works, renewals is not needed to have 95 years of copyright protection. Works published between January 1, 1923 and December 31, 1963 have two different terms for copyright. If the work was not renewed after its initial term, the work is now in the public domain for anyone to use. If the work was renewed after its initial term, the copyright protection lasts 95 years from the date of publication. Any work published before December 31, 1922 is now considered to be in the public domain for anyone to use and cannot be granted copyright protection.
When creating a new original work, consider the benefits of copyright registration.
By: Lindsey Fleischman, Corey Hilber, Sam Madden (editor)
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