How does copyright protection work?

How do you get copyright protection?

Copyright protection is very easy to get: contrary to some rumors, copyright protection exists immediately at the moment of creation.* As soon as you have written, recorded, or otherwise memorialized an original work of authorship, it is protected by an unregistered copyright. You do not have to mail it to yourself or do anything special to establish ownership, though it is a good idea to keep good records of your creation process for the work. These records might include dated drafts, notes, bibliographies, work-in-progress photographs, or other documentation of your creative process.

How much does copyright protection cost?

Unregistered copyright protection is free because it exists inherently in any creative work fixed in a tangible medium of expression. (See my previous post, What does copyright protect?, for an explanation of this legal term.) However, if you wish to register your ownership of copyrighted material, the Copyright Office charges a small fee (PDF) for each work registered. Copyrighted materials are relatively cheap to register, as compared to other types of intellectual property.

Why register copyrighted materials if they are protected without registration?

Federal registration gives copyrighted materials additional protections over unregistered materials. Registration is the process of entering an original work of authorship into the U.S. Copyright Office‘s database of copyrighted works. Registration offers several benefits to copyright holders:

  • Registration establishes a public record of the copyright claim.
  • Registration allows copyright holders to file infringement suits in court.
  • If the registration is made either (i) within three months after publication of a work or (ii) prior to an infringement, the owner of a registration can collect attorneys’ fees and a specific amount of damages set by the Copyright Act (called “statutory damages”) in a court action. The statutory damages can be collected for each individual violation. If registration is not made within this time frame, the owner of the copyrighted work must prove how much money was actually lost because of the infringement (called “actual damages”) in order to collect in court. It can be very difficult to prove actual damages.
  • If registration is made within five years of publication, the registration can be used to prove (i) the validity of the copyright and (ii) any facts stated in the registration certificate (PDF). Even better, a court will assume that these things are true unless the other party can present evidence that they are not true. Your lawyer might say that registration establishes prima facie evidence of the validity of the copyright and the facts stated in the registration certificate.
  • Once a work is registered, the owner of a copyright can record the work with the U.S. Customs and Border Protection Service for protection against importation of infringing copies.

Who is the owner of the copyrighted work? Isn’t it always the author?

Unless there is an agreement that says otherwise, the author of a work (the person who created it or the group of people who created it) is also the owner of the copyright in the work. Sometimes, a person or company will hire others to write things, either as employees or as independent contractors. When an employee creates copyrighted works in the course of employment, those copyrighted works are automatically the property of the employer as “works made for hire.” When an independent contractor creates copyrighted works, those copyrighted works are automatically the property of the contractor’s client only if their contract specifies that the works will be work made for hire. Only certain types of works can be work made for hire when created by an independent contractor, specifically:

  • A contribution to a collective work,
  • A part of a motion picture or other audiovisual work,
  • A translation,
  • A supplementary work (a work prepared for publication to supplement a work by another author; this might include forewords, afterwords, illustrations, and so on),
  • A compilation,
  • An instructional text,
  • A test,
  • Answer material for a test, or
  • An atlas.

If the work is not on that list, it can be assigned to the client. “Assignment” means that the intellectual property in the work is sold to the client but is not automatically the client’s property like work made for hire. As a practical matter, the contract will usually specify that the work is either (i) work for hire (automatically owned by the client) or, (ii) if it is not work for hire, it is assigned to the client (owned by the client as soon as any other conditions in the agreement are met, such as payment being made).

How long does copyright protection last?

Copyright protection has an unusually long duration. The duration of the protection varies depending on who created the work, but it will always be a minimum of 70 years. The exact duration of copyright protection depends on whether the work is published or unpublished, and on who the author and owner of the copyrighted work are. We have already talked about who owns the copyright; let’s look at the concepts of published and unpublished one at a time.

A copyrighted work is published when copies of the work are made available to the public by selling, lending, leasing, or renting them. This means that the work has been made available without restrictions on further disclosure of the contents of the work. For example, when a book is published, if you buy a copy of the book, you are able to then resell your copy of the book or tell other people about the book.

A copyrighted work is unpublished if it does not meet the criteria for publication: that is, if the work has not been made available to the public, or has been made available to others only with restrictions in place on further disclosure of the contents of the work. For example, if a manuscript of a book is sent to you for you to edit after you have signed a nondisclosure agreement, that manuscript remains unpublished no matter how many people have been asked to help edit it.

Now that we understand publication and ownership, how long does copyright protection last?

For a work written by a single author or group of authors, copyright protection lasts for 70 years following the death of the last surviving author. For a work that is a “work made for hire,” pseudonymous, or anonymous, copyright protection lasts for 95 years after first publication or 120 years after the work was fixed in a tangible medium of expression, whichever is shorter.

Once you have determined the duration of protection, that is that: Copyright is unique among intellectual property types in that, under current law, it requires no maintenance.* However, if you want others who are interested in licensing your work to be able to find you, it is a good idea to make sure to update your contact information with the Copyright Office whenever it changes and to record any transfers of copyright ownership.

Some parts of this post originally appeared on my law firm blog, the Web 2.0 Law Blog.

*If you have questions about a work that was originally created and/or published before January 1, 1978, please consult with an attorney. Older works are beyond the scope of this blog post and may require registration and/or maintenance in order to be protected.

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