Questions and Answers on U.S. Copyright Laws
Posted Sep 18, 2009
I am not a lawyer, nor am I qualified to give legal advice. It's important that I preface this article with the following disclaimer: do not take any ideas, questions or links in the following post as 'advice' and act on it in a formal way. I will not be responsible for the consequences. If anything, I hope the next few minutes of writing and research will increase awareness among artists (and their fans) concerning image rights. Relevant content on this is page is cited and taken directly from the U.S. Copyright Office's website. I've not posed any new ideas, all of this is freely available online for anyone who chooses to seek it out.What is a copyright and how does it work?
This is the simplest question to ask and a somewhat tricky question to answer. According to the U.S. Copyright Office, a copyright is:
...a form of protection provided by the laws of the United States to the authors of "original works of authorship," including "pictorial, graphic, and sculptural works." The owner of copyright in a work has the exclusive right to make copies, to prepare derivative works, to sell or distribute copies, and to display the work publicly. Anyone else wishing to use the work in these ways must have the permission of the author or someone who has derived rights through the author. (Circular 40)Do I have to formally register my work to protect it via copyright?
No, work need not be formally registered for it to be protected under the current copyright laws - copyright protection is automatically imbued on the piece when it is created:
Under the present copyright law, which became effective January 1, 1978, a work is automatically protected by copyright when it is created. A work is created when it is "fixed" in a copy or phonorecord for the first time. Neither registration in the Copyright Office nor publication is required for copyright protection under the present law. (Circular 40)Then why bother formally registering my work?
Because a little effort goes a long way - there are many advantages to copyright registration:
...including the establishment of a public record of the copyright claim. Copyright registration must generally be made before an infringement suit can be brought. Timely registration can also provide a broader range of remedies in an infringement suit.(Circular 40)
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following: (Circular 01)
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 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.
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.
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.
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.How does one prove copyright infringement?
Easiest way to answer to this question is to find a credited lawyer versed in IP and ask their advice. According to the Lawyers for Creative Arts (a Chicago based firm providing free legal service to all artists), one must prove two points for copyright infringement to stick:
- substantial similarity between the works of authorship
- access, meaning the second author had access to the existing work of authorship
According to the U.S. Copyright office, it is often beneficial to use the © copyright symbol, but it is not required:
Before March 1, 1989, the use of a copyright notice was mandatory on all published works, and any work first published before that date should have carried a notice. For works first published on or after March 1, 1989, use of the copyright notice is optional. For more information about copyright notice, request Circular 3, Copyright Notice. (Circular 40)How much does it cost to register a copyright?
A complete list of fees can be found at the U.S. Copyright Fee Chart. There are a variety of specific options here - for specific purposes. Electronic filing of a copyright is the least expensive option at $35 per article registered. For a traditional mail-in claim, the processing fee starts at $50. If it's a time sensitive matter, expedited processing is considered a special request and starts with a fee of $760.How long does a copyright last?
This answer depends on when the work was initially created:
Works created on or after January 1, 1978: For works created after its effective date, the U.S. copyright law adopts the basic "life-plus-seventy" system already in effect in most other countries. A work that is created (fixed in tangible form for the first time) after January 1, 1978, is automatically protected from the moment of its creation and is given a term lasting for the author's life, plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from first publication or 120 years from creation, whichever is shorter.(Circular 15a)I'd like to learn more, what should I do?
If you need more than the cursory info I've provided, it would be in your best interest to seek out a professional who is qualified to help define your status in the eyes of the law. Below are the sources I consulted:
- U.S. Copyright Office
- Lawyers for the Creative Arts (Chicago)
- Depaul University - College of Law - Clinical Programs (Chicago)
For general information about copyright, call the Copyright Public Information Office at (202) 707-3000. Staff members are on duty from 8:30 am to 5:00 pm, eastern time, Monday through Friday, except federal holidays. Recorded information is available 24 hours a day. If you want to request paper application forms or circulars, call the Forms and Publications Hotline at (202) 707-9100 and leave a recorded message.