Copyright FAQs
Charles Carreon
What does copyright registration accomplish? The registration doesn't give you a copyright. Before you can sue, however, the law requires you to register your copyright. The law also rewards you for early registration by giving you all these great remedies. As a result, there is a huge difference in enforceability between a timely-registered copyright and one that isn't registered until after infringement is discovered. Similar to the difference between a .22 and a grenade-launcher. The power of the remedies is such that some lawyers will pursue contingent-fee copyright litigation on timely-registered works. For a small business, that's the answer to the whole question all in one.
What copyright in a creative work do I have if I fail to register timely? You've got a copyright in your own works, like a painting or a book, as soon as you publish them in quantities reasonably sufficient to satisfy existing demand. The Copyright Office seems unsettled on the issue of when formal publication of website content occurs, but caution dictates that the day a website is published to the World Wide Web, the works therein are simultaneously published. The rights born at that moment “inhere” in the creator, pass to his or her heirs, and endure an additional seventy years after the creator's death. You should at least provide notice of the copyright by writing your name, the date and the word “copyright” and/or the © symbol in a conspicuous place on the work. It is quite appropriate to copyright an entire website's appearance and operability, as these are often stolen due to the ease of lifting HTML.
What power does having a copyright give me? I've explained that you have a copyright whether you register it or not, as long as your work is original, tangible, and creative. If your fantastic computer code turns out to be worth $20 Million, and you failed to register it, don't consign your claim to the trashbin. You still have copyrights, which include the exclusive rights to do four things: (1) grant reproductions, (2) display or perform your creation, (3) distribute your creation to others, and (4) create “derivative works,” like the movie that tracks the plot in the novel (with more attractive heroes and heroines).
How much does copyright registration cost? It's an unbelievable bargain. You can register copyrighted works for $30 a piece. That means that you could copyright an anthology of as many photographs as you can cram on a DVD for $30. For photos, you can copyright a whole year's worth of work using a special addendum form for a single registration payment. This is like buying a postage stamp that turns into a big-winner lottery ticket when someone infringes your work.
What happens with unregistered copyrights? Let's face it, if you can't offer your attorney a chance at recovering fees and statutory damages, how are you going to give him or her an incentive? You'd have to shell out hard cash in order to get them to prove that you had lost money due to the infringement. It's not that you don't have a copyright. It's just that your remedies stink. To publish without registering the copyright is about as intelligent as going out for a walk in New York City stark naked. If your work has any value, you should take the time to understand the copyright registration system and register your work within ninety days of publication. And you know what? You don't know how valuable your work is until it actually gets out into the marketplace. People are often surprised at what is popular, and what is not. The best novels don't necessarily receive the biggest reception. If you believe in the value of your creative work, you should use the copyright system to protect your rights for the future.
What kind of work can be copyrighted? Photographs, written works, website designs, paintings, sketches, drawings, the code that comprises a computer program, in fact, anything that fits within the scope of this simple acronym: “OTC.” This stands for “Original, Tangible and Creative.” A work is “original” if the author is the original creator of the work. It is “tangible” when fixed in a “tangible medium of expression,” such as paper, videotape, DVD or canvas. Any work that goes beyond making lists and compilations demonstrates some “creativity.” One caveat — you would think that book titles, which definitely fit the OTC description, should be copyrightable. They are not. If you like the title of someone's book, and you would like to write a book with the same title, feel free. War of the Worlds, 1984, whatever you want. My personal favorite is “The Underdogs,” but I haven't figured out the story yet. The original is so good.
How long does a copyright last? If you register a copyright in a personal name, that is “Bill Bailey, author,” copyright protection will last until the end of your life plus 70 years. If you register the copyright in the name of a company, or as “work-for-hire,” or under a pseudonym, the copyright lasts between 95 and 120 years, depending on a rather complex formula that requires a lawyer to unravel. The Supreme Court gave Stanford legal scholar and Wired columnist Larry Lessig a big black eye a few years back when he asked them to roll the terms of copyright protection back to what they were in 1998, before big media pushed through the “Sonny Bono Copyright Extension Act of 1988.” What's hilarious about these extensions of copyright is that the law was supposed to “encourage the progress of the arts and sciences.” How the heck to you encourage a dead artist — by extending his copyright more years after his death? I'm sure that would have made a great deal of difference to Mozart. I can hear him refusing to work: “No more Magic Flute! What's in it for me?”
What is a “work-for-hire?” It's what most photographers do, when they go on a shoot, photograph the models, and deliver the photographs to a person who intends to use them. A photographer will usually sign a “license agreement,” or an “assignment” of a copyright, over to the individual or company that is paying for the images. If you pay a photographer to create the work, you'll want an assignment, and then you'll want to register the copyrights as a “work for hire” in your own name. Any copyrightable materials created by an employee as part of their job duties is a work-for-hire. Still, if your employees are creating works-for-hire, the employment agreement should make that clear.
Do I need a lawyer to register? The short answer is “no.” The Copyright Office website is very informative, and makes it pretty clear what kind of form needs to be used for what kind of work. Still, if you are in the business of creating, distributing, or marketing creative content, a legal consultation can help you to get started doing it right, so don't hesitate to arrange a consultation.
What does copyright registration accomplish? The registration doesn't give you a copyright. Before you can sue, however, the law requires you to register your copyright. The law also rewards you for early registration by giving you all these great remedies. As a result, there is a huge difference in enforceability between a timely-registered copyright and one that isn't registered until after infringement is discovered. Similar to the difference between a .22 and a grenade-launcher. The power of the remedies is such that some lawyers will pursue contingent-fee copyright litigation on timely-registered works. For a small business, that's the answer to the whole question all in one.
What copyright in a creative work do I have if I fail to register timely? You've got a copyright in your own works, like a painting or a book, as soon as you publish them in quantities reasonably sufficient to satisfy existing demand. The Copyright Office seems unsettled on the issue of when formal publication of website content occurs, but caution dictates that the day a website is published to the World Wide Web, the works therein are simultaneously published. The rights born at that moment “inhere” in the creator, pass to his or her heirs, and endure an additional seventy years after the creator's death. You should at least provide notice of the copyright by writing your name, the date and the word “copyright” and/or the © symbol in a conspicuous place on the work. It is quite appropriate to copyright an entire website's appearance and operability, as these are often stolen due to the ease of lifting HTML.
What power does having a copyright give me? I've explained that you have a copyright whether you register it or not, as long as your work is original, tangible, and creative. If your fantastic computer code turns out to be worth $20 Million, and you failed to register it, don't consign your claim to the trashbin. You still have copyrights, which include the exclusive rights to do four things: (1) grant reproductions, (2) display or perform your creation, (3) distribute your creation to others, and (4) create “derivative works,” like the movie that tracks the plot in the novel (with more attractive heroes and heroines).
How much does copyright registration cost? It's an unbelievable bargain. You can register copyrighted works for $30 a piece. That means that you could copyright an anthology of as many photographs as you can cram on a DVD for $30. For photos, you can copyright a whole year's worth of work using a special addendum form for a single registration payment. This is like buying a postage stamp that turns into a big-winner lottery ticket when someone infringes your work.
What happens with unregistered copyrights? Let's face it, if you can't offer your attorney a chance at recovering fees and statutory damages, how are you going to give him or her an incentive? You'd have to shell out hard cash in order to get them to prove that you had lost money due to the infringement. It's not that you don't have a copyright. It's just that your remedies stink. To publish without registering the copyright is about as intelligent as going out for a walk in New York City stark naked. If your work has any value, you should take the time to understand the copyright registration system and register your work within ninety days of publication. And you know what? You don't know how valuable your work is until it actually gets out into the marketplace. People are often surprised at what is popular, and what is not. The best novels don't necessarily receive the biggest reception. If you believe in the value of your creative work, you should use the copyright system to protect your rights for the future.
What kind of work can be copyrighted? Photographs, written works, website designs, paintings, sketches, drawings, the code that comprises a computer program, in fact, anything that fits within the scope of this simple acronym: “OTC.” This stands for “Original, Tangible and Creative.” A work is “original” if the author is the original creator of the work. It is “tangible” when fixed in a “tangible medium of expression,” such as paper, videotape, DVD or canvas. Any work that goes beyond making lists and compilations demonstrates some “creativity.” One caveat — you would think that book titles, which definitely fit the OTC description, should be copyrightable. They are not. If you like the title of someone's book, and you would like to write a book with the same title, feel free. War of the Worlds, 1984, whatever you want. My personal favorite is “The Underdogs,” but I haven't figured out the story yet. The original is so good.
How long does a copyright last? If you register a copyright in a personal name, that is “Bill Bailey, author,” copyright protection will last until the end of your life plus 70 years. If you register the copyright in the name of a company, or as “work-for-hire,” or under a pseudonym, the copyright lasts between 95 and 120 years, depending on a rather complex formula that requires a lawyer to unravel. The Supreme Court gave Stanford legal scholar and Wired columnist Larry Lessig a big black eye a few years back when he asked them to roll the terms of copyright protection back to what they were in 1998, before big media pushed through the “Sonny Bono Copyright Extension Act of 1988.” What's hilarious about these extensions of copyright is that the law was supposed to “encourage the progress of the arts and sciences.” How the heck to you encourage a dead artist — by extending his copyright more years after his death? I'm sure that would have made a great deal of difference to Mozart. I can hear him refusing to work: “No more Magic Flute! What's in it for me?”
What is a “work-for-hire?” It's what most photographers do, when they go on a shoot, photograph the models, and deliver the photographs to a person who intends to use them. A photographer will usually sign a “license agreement,” or an “assignment” of a copyright, over to the individual or company that is paying for the images. If you pay a photographer to create the work, you'll want an assignment, and then you'll want to register the copyrights as a “work for hire” in your own name. Any copyrightable materials created by an employee as part of their job duties is a work-for-hire. Still, if your employees are creating works-for-hire, the employment agreement should make that clear.
Do I need a lawyer to register? The short answer is “no.” The Copyright Office website is very informative, and makes it pretty clear what kind of form needs to be used for what kind of work. Still, if you are in the business of creating, distributing, or marketing creative content, a legal consultation can help you to get started doing it right, so don't hesitate to arrange a consultation.