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Copyright Registration – File Early and Often


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: August 29, 2011 @ 7:35 am
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Copyright protection does not exist for an idea, procedure, process, method of operation, concept, principle, or discovery. This is true because a copyright protects only the form of expression rather than the subject matter of the resulting creation. Furthermore, a copyright is not “granted” in the same manner as patents or trademarks. A copyright is provided to the authors of “original works of authorship,” regardless of whether the work has been published and regardless of whether the work has been formally federally registered.

Unlike filing a patent application, copyrights come into being at the moment an original work is fixed in a tangible medium of expression. While federal registration of a copyright does have significant advantages, no registration is required in order for a copyright to exist. Likewise, no registration is required for an author to begin using the familiar copyright symbol – ©.  Nevertheless, anyone serious about building an intellectual property portfolio to protect their creative endeavors absolutely must apply for federally registered copyrights.  Simply stated, the cost is negligible, the rights obtained stronger than the cost would ever suggest and the protection is too long lasting to be ignored.

When you file a copyright application the Copyright Office does not go through any real examination process before issuing a copyright. What this means is that in virtually all cases you simply file the forms, pay the $35 to $50 filing fee and you will receive a copyright. This process can take at least 8 months, perhaps longer. One thing to be aware of is that the Copyright Office will require the forms to be filled out correctly. That may seem like an easy requirement to satisfy, but if you make so much as one error the form will be returned to you with instructions to fill the form out correctly and completely, which will only delay the issuance of a federal copyright registration.

Any right you ever obtain is only as good as the enforcement mechanism available to you should others trample your rights.  With a copyright the enforcement mechanism is litigation, but a copyright infringement action can only be brought in federal court.  In order to sue someone for copyright infringement in federal court you must have or be on the road to obtaining a valid federal copyright registration. It is true, however, that if the copyright infringement action is brought by an author who is alleging a violation of the author’s rights protected by §106A no federal copyright registration is required. You shouldn’t read too much into this though because in almost all cases the rights provided by §106A are not what the typical copyright owner will want to sue on.

Before you file a copyright infringement action in federal court you must have initiated the registration process.  To bring a lawsuit because some, but not all, courts will allow an action to be maintained if a copyright application has been filed. Others, however, require an issued federal copyright prior to bringing a copyright infringement action in federal court. Regardless of whether the federal district court where you will file requires an issued copyright to bring a lawsuit there are significant advantages to filing a copyright application as soon as possible.

In most instances the term copyright infringement relates to the situation where the copyright owner is alleging a violation of §106, which is how the term will be used moving forward. In the most typical situation a copyright infringement action will allege a violation of §106, which gives the copyright owner the following rights:

(1) to reproduce the copyrighted work,

(2) to prepare derivative works based upon the copyrighted work,

(3) to distribute copies or phonorecords of the copyrighted work,

(4) to perform the copyrighted work publicly,

(5) to display the copyrighted work publicly, and

(6) to perform via digital audio transmission.

If the copyright, owner who initiates a copyright infringement action is able to demonstrate that a copyright infringement has occurred, they are entitled to relief, which may take the form of an injunction (see 17 U.S.C. 502), impounding and disposition of infringing articles (see 17 U.S.C. 503), attorneys fees (see 17 U.S.C.  505), actual damages and profits of the infringer (see 17 U.S.C. 504), or statutory damages (see 17 U.S.C. 504(c)).

The real benefit to the copyright owner, and therefore the real worry of the infringer, relates to statutory damages and attorneys fees.  However, in order to receive either statutory damages or attorneys fees it is necessary to file for federal copyright protection immediately upon creation, but in no event later than three months after publication. (See 17 U.S.C. 412). Filing within the first three months is absolutely essential because it is extremely difficult to prove actual damages in a copyright infringement litigation.  In fact, in some cases actual damages may not be present at all, making it impossible to prove the copyright owner has been legally harmed.

The threat of statutory damages and the fact that attorneys fees are awarded to the prevailing party can provide the leverage necessary for the copyright owner to obtain the quick settlement of a copyright infringement dispute, sometimes even before there is the need to file a federal complaint, after all many who are infringing know they are infringing and when caught want only to not have to pay or deal with a legal mess.  Since the goal of most copyright infringement disputes is to get the infringement to stop as soon as possible you don’t necessarily want to go looking for a reason to file a copyright infringement case.  Litigation is messy and costly.  What you want is to enjoy the exclusive rights you have been granted, or to be paid for the use of those rights by another.  To maximize the potential for a quick resolution you therefore need the statutory damages and attorneys fee stick to wield.  Make sure that statutory damages and attorneys fees remain a viable option in terms of remedies available to you.  The only way to do this is to file to obtain a federally registered copyright within three months of creation.  Quite a significant advantage to applying for a copyright as quickly as possible.

The moral of the story is that when you create something that is copyrightable and potentially valuable you absolutely must seek to obtain a federal copyright registration.  The cost of filing if done on your own is quite cheap given the benefits you get from a federal registration compared with an unregistered copyright.  Even if you hire an attorney to complete the forms for you the cost will likely be on the order of about $350, which is still a bargain given the rights you obtain and the length those rights last.

As a general rule, a copyright lasts for the life of the creator PLUS another 70 years.  So your grandchildren and great-grandchildren can benefit from your creation well after you have left this earth.  For the price the rights you obtain with a federal registration are a true bargain! File early and often my friends!

You can never have too many copyrights, and invariably if you pick and choose when to file you will wish you had applied for a copyright sooner once someone is infringing.  By then it will be too late for statutory damages and attorneys fees, which is unfortunate.  The early bird gets the worm, and those quick to file a copyright application reap the most rewards.

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Posted in: Copyright, Gene Quinn, IP News, IPWatchdog.com Articles

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

2 comments
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  1. Gene,

    How do you handle your blog posts? Do you formally register them? Daily or yearly or…?

    John

  2. Gene:
    I have only one quibble with your fine post on copyright registration. You state that, to be eligible for statutory damages, a copyright holder “must register immediately upon creation, but in no event later than three months after publication.”

    That is not quite right. If the work has never been infringed there is no time limit to register. In other words anyone who wishes to now register works created years ago which have never been infringed may timely do so now; and those works will qualify for statutory damages if they are later infringed. But if work has been infringed, then the 3-month clock starts to run (under section 412 of the Copyright Act); and the court will, as you correctly state, examine whether the registration was within that three month window of initial publication. Hope this is helpful.

    I wrote a primer for ASMP (American Society of Media Photographers) explaining the mysteries of statutory damages; your readers may find it here:http://www.ipinbrief.com/wp-content/uploads/2010/06/statutory-damages-explained-asmp-spring-2010.pdf.

    Thanks Gene

    Andrew

    .