Copyright Registration

Lang Patent Law has the copyright experience to step you through the copyright registration process regardless of whether your field of endeavor is art, music, writing, software, smart phone applications, or other creative expression. Your creativity is valuable. Your originality separates your work from that of your competition, and provides your position in the marketplace. It is therefore important to consult with a copyright attorney to ensure that your creative works are properly protected.

Advantages of a Registered Copyright

Prompt filing of copyright registration applications is critical. Registration provides notice of your copyright to anyone searching the Copyright Office records.  If your copyright is infringed by a given infringer prior to the effective date of copyright registration (the date the complete application is received by the US Copyright Office), then you lose the right to collect statutory damages and attorney fees against that infringer for continuing infringement of the previously infringed work. Actual damages may be difficult to prove, so statutory damages and attorney fees are powerful tools in the copyright enforcement toolbox. It is important to preserve the availability of these tools with prompt filing of the copyright application.

Signed certificate of registration

Man writing code to develop software

The degree of originality required to obtain copyright registration is small. However, if your work is based on pre-existing works, then these works must be listed in the copyright application. Furthermore, it may be necessary to negotiate a license with the owner of the original works prior to applying for registration and prior to distributing your work. Again, promptness is advantageous: a compulsory license can be claimed for certain musical recordings, but the owner of the copyright for the underlying work must be notified no later than 30 days after recording your work, and prior to any distribution of your work. A copyright lawyer can provide valuable assistance in addressing these issues.

Software Copyright

Although only some software is eligible for patent protection, all software is eligible for copyright protection. This copyright protection extends to the source code as well as to the screen displays generated by the code. Registration of the copyright after completion of the software but before public distribution of the software maximizes the available remedies in the event of infringement.

Software often contains trade secrets. The deposit copy which is submitted with a software copyright application can be selected in a manner which demonstrates the original creative expression while maintaining the secrecy of the trade secrets. Please contact me to discuss the best portions of your source code to include in a copyright application.

Works Made For Hire

Prior to applying for copyright registration, ownership of the copyright must be considered. Copyright is owned by the author. The author is the individual making the creative decisions for producing the work. In the case of an employee producing work in the course of employment, the work is a work made for hire, and the employer is the author.

If independent contractors are used to produce the work, care must be taken to ensure that ownership of the copyright is properly transferred to the intended owner. The statutory definition of a work made for hire made by an independent contractor is limited to “a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.” Additionally, the parties must agree in writing that the work is a work made for hire. 17 U.S.C. §101. If an independent contractor is hired to create software, this software is not a work made for hire. Ownership of the copyright to the software must be transferred by written assignment.

Copyrights Associated With Clothing, Jewelry, or Other Useful Articles

Useful articles are not subject to copyright protection. However, original creative expression which is included with clothing or another useful article can be protected by copyright to the extent that the original creative expression is separable from the useful article.

The application to register the original creative expression associated with a useful article must be carefully planned to ensure that the deposit copies depict sufficient detail to ensure a meaningful scope of coverage. The copyright application should also convey the specific features of the creative expression which the author regards as original.

Depending on the nature of the useful article, a design patent application should be considered instead of or in addition to applying for copyright registration.

My copyright experience includes handling a variety of copyright registration and infringement issues, including Digital Millennium Copyright Act issues. I am also experienced at handling copyright disputes.

Copyright Application

Timing of the Copyright Application

Since copyright protects the expression of an idea, and not the idea itself, the application should not be filed until the work is complete. Once the work is complete, and before the work is revealed to the public, an application for registration should be filed so that the effective date of the registration will be prior to any infringement.

Applying for Copyright Registration

The contents of an application for copyright registration depend on the type of work, the number of works to be registered, whether any material created by others is included in the work, and whether the work is published or unpublished. Depending on the type of work and whether the work has been published, it is sometimes possible to register multiple works using a single copyright application. Material which was created by others should be disclaimed from the application.

Prior to filing the copyright application, ownership of the copyright by the claimant should be verified, and copyright assignments should be obtained where appropriate.

Frequently Asked Questions

An application for copyright registration should be filed, preferably before your work is published, provided to others, or otherwise made publicly available. Registration is necessary to provide a court with jurisdiction to hear the suit. Infringement of a registered work also results in liability for statutory damages as well as potential liability for attorney fees. Registration may be accomplished any time after completion of the work, but the benefits of registration only accrue after registration. Furthermore, obtaining the full benefits of registration – specifically statutory damages and attorney fees - generally depends on completing the application process prior to infringement by the defendant against whom the statutory remedies are sought. An exception exists for works that are infringed after publication, and for which registration is sought within three months of the first publication. You should include a copyright notice on your work to notify others of your claim of copyright. Although such a notice is not required to receive monetary damages, the absence of a notice can give an infringer the opportunity to prove innocent infringement, which can reduce the amount of a monetary damage award.

Yes, but this must be done carefully. Your copyright application should disclaim pre-existing work that is included within your work. Depending on the amount and substantiality of the pre-existing work included, you may also need to obtain a license from the owner of the copyright in the pre-existing work before copying or distributing your own work. Particularly in the case of musical compositions, even the inclusion of small amounts of work owned by others has resulted in substantial litigation. In some cases, a license agreement from the owner of the pre-existing music copyright may be necessary in order to obtain copyright registration.

If you are distributing the work to others for collaboration, to seek license agreements for your work, etc., document and retain copies of all correspondence with others. Copyright infringement requires actual copying, which is proven by proving access to the work plus substantial similarity of the allegedly infringing work to the copyrightable elements of the protected work. Retaining copies of your correspondence will help prove access.

You should also mark your work as being protected by copyright using the word Copyright or the © symbol next to the year of creation and the name of the copyright owner. Providing notice of the copyright claim can prevent a defendant from successfully asserting an innocent infringer defense. If an infringer removes the copyright notice, then that infringer can be liable for the removal of the copyright management information.

Hopefully you applied for registration prior to the commencement of infringement, because prior registration provides the opportunity to gain statutory damages (which do not have to be proven) and attorney fees. However, even without prior registration, a decision from the Copyright Office can be obtained on an expedited basis, and actual damages and possibly an injunction are still available. The first step is a comparison of the copyrightable elements of your work to the allegedly infringing work, as well as an evaluation of the degree of access that the infringer had to your work. If I determine that infringement is occurring, the next step is typically a cease-and-desist letter. This letter is often enough to stop the infringing activities, but sometimes litigation is required.

You cannot safely ignore the letter. A comparison of your work with the copyrightable portions of the allegedly copied work must be performed. Additionally, your access to the copyrighted work must be evaluated. The registration status of the allegedly copied work must also be checked to determine your potential liability. Learning the registration status of the allegedly infringed work is critical, because infringement of a registered work can result in an award of statutory damages and attorney fees. However, if the work is unregistered, or if the effective date of the registration predates the commencement of the alleged infringement, then in most cases damages will be limited to provable, actual damages, and attorney fees will not be available to the plaintiff. Thus, filing a suit for infringement of an unregistered work is rarely financially worthwhile for the owner of the work. If your work is sufficiently different or amounts to fair use, then we will inform the accuser of this fact, and you may proceed with relative safety, although you could still be sued. If infringement appears likely, then we can take steps to mitigate your exposure to liability, such as stopping the allegedly infringing activity and/or negotiating a license agreement.

If foreign protection is desired, the laws of the country wherein protection is desired should be researched prior to publication of the work, if possible, because the availability of protection may depend on facts at the time of the first publication of the work. Depending on the country in which protection is sought, one or more of several different international treaties may simplify the application process. One of the most common treaties is the Berne Convention. Copyright protection automatically exists for copyrightable subject matter in countries that have signed this treaty, without the need to take any formal steps.  Read more about international copyright protection here.

I do not recommend doing so. Your intellectual property is a critical asset that needs the best possible protection. The apparent simplicity of copyright applications can also be deceiving, particularly if elements of other works are incorporated in your work. In this case, it may be necessary not only to name the underlying work in the application, but also to negotiate a license with the owner of the underlying work. Additionally, ownership of the copyright may or may not be readily apparent from the circumstances of the work’s creation. It is not uncommon for applicants to fail to realize the difference between situations in which a work is a work made for hire, and situations in which a written assignment agreement is necessary. Doing a job properly the first time is always easier and less costly than trying to repair mistakes later, and also ensures that rights will not be lost as a result of mistakes or omissions. Please contact me to discuss your needs before taking action yourself.