Copyright Lawyer in NYC - Copyright Transactions & Litigation

Copyright Registration

Copyright law prevents others from using another person’s original work without permission.  A work automatically receives copyright protection when it is created and set in a fixed form.  However, creators should consider registering their copyright in order to gain additional benefits that help enforce their rights against infringers.

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What Is a Copyright?

Copyright refers to the legal protection that applies to original works of authorship that are fixed in a tangible medium, like those written down or recorded in some way.  An original work is one that is independently created by an individual and involves at least some degree of originality.  However, the work does not have to be published.  Copyright law does not protect ideas, but it does protect the expression of those ideas.

Scope of Rights

Copyright grants the creator an exclusive legal right to determine when and under what conditions an original work can be used by others.  Specifically, the copyright owner has the exclusive right to:

  • reproduce the work;
  • prepare derivative works;
  • distribute copies of the work to the public;
  • perform the copyrighted work publicly; and
  • display the copyrighted work publicly

In addition, the copyright owner has the right to transfer or give permission to others, any of these rights.

What Can Be Copyrighted?

U.S. copyright law allows virtually all types of work to be copyrighted, including:

  • literary works;
  • musical works, including any accompanying words;
  • dramatic works, including any accompanying music;
  • pantomimes and choreographic works;
  • pictorial, graphic, and sculptural works;
  • motion pictures and other audiovisual works;
  • sound recordings; and
  • architectural works.

As noted above, if the work is not original or fixed in a tangible medium, it is not copyrightable.  As a result, techniques, facts, concepts, or ideas alone cannot be copyrighted.  Also works that generically compile uncopyrightable information commonly available or contain no original authorship are not copyrightable.

In addition, the following types of works are not protected under copyright law, but may be protected under other laws, such as trademark or contract law:

  • Titles, names, short phrases, and slogans
  • Familiar symbols or designs
  • Typefaces, page designs, and layouts
  • Works created by the U.S. Government
  • Works in the public domain

Should Copyright Be Registered?

While owners are not required to register their copyright to get some baseline protections, there are a variety of benefits to registering a copyright with the U.S. Copyright Office.  Importantly, registering your work with an association (like the WGA) does NOT qualify the work for the additional protections.  Among the most important of these is that it allows the copyright owner to sue for infringement of the work in federal court. Registration is a prerequisite before you can sue against an infringer.  A recent Supreme Court decision determined that the application needs to have been processed, not just applied for, before you can file a lawsuit.  Not having a work registered could significantly delay your ability to enforce your rights.

Furthermore, registration provides both a public record of copyright ownership and evidence of ownership in an infringement action. This is crucial as the copyright owner has the burden of proof to show ownership.  Courts have held that registration before, or within five years of publication of a work, establishes a presumption of ownership, which then shifts the burden of proof to the party contesting the copyright ownership.

Copyright registration also enables the owner access to statutory damages of up to $150,000 as well as attorneys’ fees, and court costs if the registration is completed within three months of publication of the work.  This ensures the owner receives some compensation for the infringement, since it may be difficult to prove actual damages.

Owners can also receive protection from the U.S. Customs and Border Protection program, which will seize and detain imported goods that violate registered copyrights in the U.S.

How Can Copyright Be Registered?

In order to register a copyright, 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 of the work to be registered, and a nonrefundable registration fee (for standard processing: $45 – $65 online; $125 by mail).  The author of the work may either register the work under his or her name or use 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.

Effective August 17, 2020, the U.S. Copyright Office has added an option for registration of short, online literary works (ex. blog posts, social media posts, short articles, etc.) known as Group Registration for Short Online Literary Works (GRTX).  Owners will no longer have to register each post separately.  Instead, they can include up to 50 such works in one application for a single filing fee.  Works under this category must be between 50 and 17,500 words, by the same author(s) and filed under their names, published online within a three-month period, and cannot have been published in print before having been published online.  Applicants must submit the online application (Form GRTX) via the electronic registration system and upload a ZIP file containing a separate digital copy of each work.

Conclusion

Copyright is a valuable right. The best way to protect it is with registration to ensure it can be enforced against potential infringers.

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