What is a Copyright and Why Should I Register My Work with the US Copyright Office?
Copyright is a personal property right that is conveyed to authors as a form of protection for their “original works of authorship,” that are “fixed in a tangible form of expression.” Works eligible for protection includes literary works, visual arts, sound recordings, performing arts (including lyrics, music, screen plays, etc), motion picture and audio-visual works, mask works, and a combination thereof, whether published or unpublished.
There are many rights conveyed by copyright, including reproduction, preparation of derivative works, distribution, public display, sale, rent, lease and transfer of ownership, among others.
“Protection for authors” comes in a variety of ways, including the right to reproduce, prepare derivative works, distribute copies for public sale, transfer ownership, rent, lease, lend, (if applicable) perform the work publicly, (if applicable) display the work publicly, perform the work publicly (for sound recordings) by means of digital audio transmission, and right of attribution and integrity (for certain authors of visual arts).
Who the actual “author” is, is often the subject of dispute. In general, the “author” is the one who actually created the work, except in cases where a particular work is a deemed a “work made for hire.” There are only very specific instances of when a “work made for hire” applies, and if it doesn’t the author owns the copyrights in the work, even if someone else paid that author for the work. Section 101 of the Copyright Act defines “work made for hire” as (1) a work prepared by an employee in the scope of employment, or (2) a work specially ordered or commissioned for use as one of the following, provided there is an express written instrument between the parties signed by them, that specifically says the work is supposed to be considered “a work made for hire.” Those special ordered or commissioned works are:
- a contribution to a collective work;
- a part of a motion picture or other audiovisual work;
- a translation;
- a supplementary work;
- a compilation;
- an instructional text;
- a test;
- answer material for a test; and
- an atlas.
Notably absent from the list above are literary and artistic work. Title 17 U.S.C. § 102(a)(1) extends copyright protection to “literary works,” and computer programs are classified as literary works for the purposes of copyright. See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5667. This means the copyright of most software cannot be transferred with “work made for hire” language in a contract, although some computer programs may qualify in another category such as an audiovisual work (for video games or virtual environments) or translations (for software ported from one language to another), and some informational databases may qualify as a compilation.
If you hire contractors to produce anything that is copyrightable (i.e. software, apps, photos, etc), you must have a proper “copyright assignment” in a written contract, if you have any hope of maintaining the copyright of that work.
The same issue applies for documents and websites. If a business hires a contractor, not an employee, to develop their website, that contractor owns the copyrights associated with the website, if the contractor produced the text, graphics and/or pictures of the website. Things can get interesting if the contractor is using a business’ content, graphics, logo, pictures, etc, to build that website. Under such a scenario, the website then becomes a “compilation” that can be the subject of a “work made for hire,” provided there is an actual written contract between the parties, and that contract has specific “work made for hire” language. In either case, anyone hiring a contractor to work on its website would be well-served to have that contractor sign a proper “copyright assignment” before having that contractor start work.
Copyrights are automatically conferred upon the author at creation, and it is not necessary to publish or register the work to benefit from copyright protection. However, proper copyright registration of a work provides these advantages:
- Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
- If made before or within five (5) years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
- Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. For additional information on this, see the the U.S. Customs and Border Protection website.
- Most importantly, if registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
Why Use L4SB for Your Copyright Registration?
- Real Attorneys, not Scriveners
- Real Satisfaction & Peace-of-Mind
- Exclusively Focused on the Needs of Business
- Real Fast, Real Cost Savings!
What’s Not Included?
- Anything After Registration, such as Copyright Office Actions. We’re happy to help you file your copyright registration. That doesn’t guarantee the Copyright will file your copyright or raise issues. If that happens, our ongoing involvement would be billed on an hourly basis.
- No Refunds. Once you engage us for this service, we perform a number of activities on your behalf and expend quite a bit of time preparing the application and answering your questions. Therefore, we will not refund the flat-rate fee for a copyright registration, even if you ultimately decide not to register your work.
- The Flat-Rate Fee Only Covers One Copyright Registration. If you want to register additional copyrights, we will charge you the flat-rate fee for each additional copyright registration.
Common Questions About Copyrights:
- What's the best way to ensure I own web or software copyrights?
Whether you are a software developer or a business that has hired employees or contractors, you are best served with a “employee contract” or “independent contractor agreement” that contains a strong “copyright assignment” clause.
- Do I need to include a © symbol on everything?
The Copyright Act does not require use of a “copyright notice,” although it is beneficial to do so. In particular, the use or incorporation of a copyright notice may be important because it informs the public that your work is protected by copyright, identifies you as the copyright owner, and shows the year of first publication. Furthermore, in the event that your work is infringed, if you’ve used a proper notice of copyright and it appears on the published copy or copies to which a defendant in a copyright infringement suit has had access, then the defendant cannot use a defense based on innocent infringement to mitigate actual or statutory damages (except as provided in Section 504(c)(2) of the Copyright Act). Innocent infringement occurs when the infringer did not realize the work was protected under copyright law.
The proper way to use the ©, is to (1) use © or the word “Copyright”, and (2) the year of first publication of the work (the date may be omitted for in certain limited circumstances), and (3) the name of the owner of the copyright in the work.
- How do I get help with a 'copyright assignment?'
Please contact us, and we would be happy to help you make sure you have a proper “copyright assignment” clause in your employee contract, independent contractor agreement, or other licensing arrangements or contracts.
- What is not eligible for copyright protection?
The following list represents items that are not eligible for federal copyright protection:
- works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
- titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; (these items may be protected under trademark law), mere listings of ingredients or contents
- ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, (these items may be protected under patent law), as distinguished from a description, explanation, or illustration
- works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
- What are 'Statutory Damages' in Copyright Law?
Section 504 of the Copyright Act articulates “remedies for infringement: damages and profits,” and specifically, subsection (c) states that in a lawsuit for infringement, any time before final judgement, the infringer shall be liable from $750 to $30,000, as the court deems just, for all infringements involved in an action. If the parties don’t settle before judgement, and the court finds the infringement was conducted willfully, the statutory damage goes up to a maximum of $150,000 for all infringing activities. The statutory damages can go down to a minimum of $200 (at the discretion of the court) for all infringing activity, if the defendant can prove they didn’t know their use was infringing (and had no reason to know).
- What are the fees for registering a Copyright?
The Copyright Office charges a fee of $35 per application if you register a single application or $55 for a standard application.
- How long does it take to register a Copyright?
Currently, the Copyright Office’s backlog is approximately eight (8) months.
- What types of electronic files are permitted?
The Copyright Office permits most standard types of file formats for data, images, audio, video, text and presentations. For a complete list, please see the Copyright Office’s List of Acceptable File Formats.
- What is the difference between a Trademark and a Copyright?
In very rough terms, a trademark is a “mark” that identifies a source for a good or service, while a copyright is a unique “expression.” For example, consider “Star Wars.” The two-word phrase “Star Wars” is an actual trademark owned by Lucasfilm Ltd. The thousands of words comprising the scripts and stories of Star Wars are not protected in trademark law, but by copyright. Lucasfilm presumably owns the copyrights to its stories, and it uses copyright law to protect and control the copying and distribution of the actual content comprising Star Wars films, books and stories.
Similarly, consider “Mickey Mouse.” The two word combination “Mickey Mouse” is an actual trademark owned by Disney Enterprises, Inc., while the image, character and stories themselves are presumably owned by Disney Enterprises, Inc., and protected by copyright law.