Throughout most of the 20th century,
copyright protection in the United States had been conditioned upon compliance
with certain formal requirements - copyright registration and copyright notice. Since the 1976 Copyright Act’s amendment by the Berne Convention Implementation
Act of 1988, these formalities are no longer required as a condition to
copyright protection. Copyright registration and notice are both optional
although strongly recommended since they serve practical functions and provide
some important benefits to copyright owners.
In 1870, the
Library of Congress was given the
responsibility of handling copyright registrations, and in 1897, the
Copyright Office was formed as a department of the Library of Congress to handle this
responsibility. The Copyright Office processes registration applications and
maintains records of copyright registrations and other recorded documents
dealing with copyright ownership such as
assignments,
wills,
mortgages and
security interests.
The Copyright Office is an excellent source of
information on copyright law in general and copyright registration specifically.
It provides easy to understand summaries on different subjects dealing with
copyright (known as Information
Circulars), registration forms
& instructions for submitting registration applications, and summaries of
recent and pending changes to copyright law. Much of this information is
available from the Copyright Office website at
http://www.copyright.gov/.
You can also search copyright registrations and
other recorded documents filed beginning in 1978 at
http://www.copyright.gov/records/.
This is a very easy way to find out who owns a copyrighted work although the
lack of a registration does not guarantee that a work is not protected by
copyright since registration is optional under current U.S. law (as well as the
law of most other countries).
Many people have the mistaken belief that in order to own a copyright to a
work, you have to register the work or, in other words, apply for a copyright. In fact,
the government does not grant copyrights and copyright ownership arises
automatically upon creation of a copyrightable work. However, under
section 408 of
the Copyright Act, the United States has a permissive (or optional) registration
system. Copyright registration essentially means that someone has made a claim
of ownership to a work as of a certain date. However, the fact that someone has
registered a work claiming to be the copyright owner does not absolutely
guarantee that they are really the owner since a registration can be contested
in court. In other words, if you created a particular work and someone else
fraudulently registered the copyright claiming to be the owner, you can sue them
alleging that their ownership claim and registration is invalid. Of course, you
would have to offer proof that you really are the owner, but assuming you could
do so, the court would invalidate the other party’s fraudulent registration.
COPYRIGHT MYTH
BUSTER
You Do Not Have To Register A
Copyright To Own A Copyright!
Since copyright registration is not required to own a
copyright, you may be thinking "why should I register? The answer is that
there are some very important benefits that are gained by registering a work. In
general, copyright registration can be thought of as a relatively cheap form of
insurance. Although it doesn’t guarantee that your work will never be infringed,
it makes it easier to prove that you own the work and to legally pursue
infringements if they occur. Some of the benefits afforded by registration are:
Registration creates a
public
record of your claim of copyright ownership.
Once a work has been registered, it is indexed in the Copyright Office records
under the work’s title and the author’s name. Since the Copyright Office
records are public records, anyone can
search these records to determine who
owns a work. This helps people find out who they need to obtain licenses from
to use a work and helps to prevent fraudulent transfers of copyright
ownership.
Registration provides what is legally known as "prima
facia" (on its face)
evidence of ownership. This means that if an ownership dispute ever arises, a
court will presume that someone who registered a work is the copyright owner
unless the other party can disprove the registrant’s ownership claim.
Additionally, if you register within 5 years of a work’s initial publication,
a court will also assume that all of the information contained in the
registration is valid. If a registration is made after 5 years of the work’s
initial publication, the amount of evidentiary weight given to the copyright
certificate is up to the court.
Under
section 411(a) of the Copyright Act, you must register a work
before you can file a copyright infringement suit. Although you could register
a work immediately prior to filing an infringement suit, it is better to
register earlier since you would either have to wait until your registration
application is processed which usually takes at least six months or pay a
substantial
extra fee for an expedited registration.
If a work is registered prior to its infringement or within 3 months after
its initial publication, the owner has the right to elect to receive
statutory damages and
attorney's fees in a successful infringement claim. This can be
extremely important since it is sometimes difficult to prove the actual
monetary amount by which you are damaged due to an infringement. Further, the
actual amount of damages may be comparatively small while the cost of
litigating an infringement claim can be quite high. Finally, an infringer who
knows you have registered may be more willing to
settle due to the possibility
of being held liable for statutory damages and attorneys fees.
From a
practical standpoint, if you fail to register a copyright within 3 months of
initial publication, your enforcement options against infringers will be
extremely limited and in many cases will not be worth pursuing.
COPYRIGHT TIP
Although
registering a copyright is not required, it
provides some important benefits if you ever
have to sue someone for infringing your
copyright!.
Anyone who owns all or part of the
exclusive rights to a copyrighted work (or
their authorized agent) can register a work. Usually either the author of a work
or someone who acquires copyright ownership (such as a movie production company
or record company) will register the copyright. Only one registration
should be filed for a work even if there is more than one author or owner.
A work can be registered at any time during its term of
copyright. Ideally, however, you should register a work as soon as possible
after its creation. As discussed above, it is also highly advantageous to
register within 3 months after a work’s initial publication in order to have the
right to receive statutory damages and attorneys fees in an infringement action.
Many copyright owners do not register their works immediately after they are
created since they do not want to pay the registration fee (currently $45). For instance, a music publisher which acquires ownership
of many songs might not want to incur the expense for each song until it
knows whether specific songs will generate any income.
COPYRIGHT TIP
A
good practical
rule is to register copyrights as soon as you know the
work is likely to be published (e.g., when a song is recorded by an artist or
licensed for use in a movie, etc.) and at the latest, within 3 months
after initial publication. Additionally, authors can save some money by
registering multiple unpublished works as a collection as discussed
below.
Generally, the registration process is very simple. The Copyright Office
supplies application forms for different types of works (e.g., musical works,
sound recordings, literary works, visual artwork, etc.). After filling out the proper form, send
it to the Copyright Office along with the filing fee and a deposit copy or
copies.
(1) Registration Forms
Copyright registration forms require the applicant to fill in information
about the copyright claimant (owner) and the author of the work, information
potentially required to determine the copyright’s duration (i.e., creation date
and author’s death) and the basis of ownership for any parties other than the
work’s author. The forms most commonly used in the entertainment industry are:
Form PA: Works of the Performing Arts - This form should be used to
register all works prepared to be performed directly before an audience. Form
PA is used to register musical works (including accompanying words), dramatic
works (including accompanying music), choreographic works, motion pictures and
other audiovisual works, and multimedia works (works combining text with
graphics, videos and sounds).
Form
SR: Sound Recordings - This form should be used to register sound
recordings fixed on or after February 15, 1972 (sound recordings created
before February 15, 1972 are not protected by federal copyright). Generally,
Form SR covers only the series of sounds that make up the recording and not
any musical, literary or dramatic works contained on the recording. However,
it is possible to use Form SR to register the underlying musical composition
or album cover artwork as well as the sound recording in certain
circumstances. In order to do so, the owner must be the same party and you
must specify that the application covers both works in the authorship
statement in space 2 of the form.
Form TX: Nondramatic Literary Works - This form is used to register
written works such as books, poetry, magazine articles, etc. It can also be
used to register song lyrics apart from music accompanying them.
Form VA: Works of the Visual Arts - This form is used to register
pictorial, graphic and sculptural works. Form VA can also be used for album
cover art when the copyright owner is different than the copyright owner of
the sound recording ( when the copyright owner is the same, Form SR can be
used for both).
The Copyright Office also has short forms available for the registration of
certain works by their authors. The short forms are simplified versions of the
full forms, consisting of one page rather than two and are available for forms
PA, TX and VA. They can only be used if: there is only one author and owner of
the work; the work is not a work
made for hire; the work is completely new; and
the form is signed by the work’s author.
Forms can be downloaded from the Copyright Office’s website at
http://www.copyright.gov/forms/. Although filling out copyright registration forms is fairly simple, it is
important that you fill out registration forms clearly and accurately since it
is possible that the form could be needed in court to prove your ownership
claim. A person who intentionally lies on an application form is subject to a
fine. Chapter 9 of Moser on Music Copyright
contains step-by-step instructions for filling out Form PA although most of the
information would be applicable to other registration forms as well.
In certain circumstances, it is possible to register more than one work on
one application form and pay only one application fee.This can be very
beneficial, especially to prolific authors who would otherwise have to spend $45
(the current application fee) for each work they register. In order to register a group of works in this
manner, the following five requirements must be satisfied:
The works to be registered are unpublished.
The same party must own all rights in the works and in the collection as a
whole.
The works must be by the same author or at least one author must be common
to each work.
The collection must be assembled in an orderly form. For example, you
should clearly specify the number of works and the title of each work in the
order that they are contained on your deposit material.
The collection must be identified by a single title (e.g., "David Moser's
#1 Songs of 2007").
For more on registration a collection of
musical works, see the Copyright Office's
Circular #50
Glam rock band
Warrant was sued for copyright infringement
over their
hit single
Heaven. The plaintiffs' Heaven was one of fifteen
songs registered in a group registration. The court
ruled that the group registration was valid. The case
apparently never went to trial, but the judge did note
that Warrant singer
Jani
Lane might have had access to the plaintiffs' song
and that the songs were strikingly similar ("the two
songs share a common chorus, with the melody, the words,
and the phrasing being completely identical.").
After the Copyright Office receives your registration application, it will
examine the registration form and
deposit material and will usually issue a
registration certificate if everything is filled out correctly and the material
deposited contains copyrightable subject matter. It is important to note that
the Copyright Office does not make any judgment as to the merit of your
copyright claim. Its review of applications is limited to whether the work is
copyrightable and whether the applicant has satisfied the registration
requirements.
You should receive some type of response from the Copyright Office within six
months after your application is received, although sometimes the process takes
longer due to the Copyright Office’s workload. If your application is approved,
you should receive a registration certificate (a copy of your application with
the Copyright Office’s official seal and a registration number and date). The
effective date of registration is the date on which the Copyright Office
receives all of the required materials rather than the date the registration is
actually issued. An example of a registration certificate can be viewed
here.
If your application contains any errors or omissions, the Copyright Office
will return the application with a letter explaining what needs to be corrected.
You must respond to a request for correction within 120 days or you will have to
submit a new application and pay another fee.
If the Copyright Office determines that a work can’t be registered, it will
deny the application. In practice, the Copyright Office rarely denies
registration. Under what is known as the rule of doubt, the Copyright Office
will usually grant registration even if it has a reasonable doubt about the
copyrightability of a work. When the Copyright Office is not sure about the
copyrightability of a work, it will usually send a letter informing the
applicant that its ownership claim may not be valid even though a registration
is issued. If a dispute ever arose over the work’s copyrightability, a court
would have to make the ultimate determination. If your application is denied,
you can make a written objection and request that the Copyright Office
reconsider the application. You must do so within 120 days of receiving the
denial notice.
Once a registration has been made for a work, it is generally not possible to
make additional registrations for the same work. However, you can correct or
supplement information supplied in a previous registration using Form CA. The
main reason for correcting or supplementing a registration is that if you are
ever involved in a legal dispute over the copyright, the registration
certificate will be used as evidence in court. If your certificate contains
errors or omissions, it could be detrimental to your case. Additionally, keeping
your registration information accurate and current will make it easier for
people searching the Copyright Office records to contact you for permission to
use your work.
In order to save money on copyright registrations, some people use a
procedure known as poor man's
copyright although the name is misleading since it
is not part of copyright law. Poor man’s copyright involves putting a copy of
your work in an envelope, sealing it, and sending it to yourself by certified
mail. When you receive the envelope in the mail, leave it sealed. The idea is
that if you are ever involved in a dispute, the envelope can be opened in court,
proving that you created the work no later than the date of the postmark stamped
on the envelope.
Poor man’s copyright, although it may be used as proof of
creation, is not a substitute for registration.
First, the court must be convinced that the envelope has not been
tampered with (opened & resealed). Also, poor man’s copyright
does not entitle you to the benefits provided by registration such as the
right to seek receive
statutory damages and
attorney's fees in an infringement lawsuit. Consequently, poor man’s
copyright is of limited value and not recommended.
Copyright notice is a way of informing people
that a work is protected by copyright and who it is owned by. Prior to March 1,
1989, placing notice of copyright on published copies of a work was required in
order to have copyright protection in the United States. Under the 1909
Copyright, the failure to use copyright notice had very harsh consequences. If
notice was omitted or improperly placed on a work, the work automatically
entered the public domain.
Unlike the United States, the vast majority of foreign countries did not
require copyright notice as a condition to copyright protection. In fact, the
Berne Convention specifically states that copyright protection cannot be subject
to any formality such as notice. Consequently, when the United States decided to
join the Berne Convention, it had to eliminate the mandatory notice requirement.
Under the Berne Convention Implementation Act of 1988 which became effective on
March 1, 1989, notice is no longer required in order to have copyright
protection.
Although copyright notice is no longer required, it is still recommended and
there are some advantages to using it. One practical advantage is that placing
notice on copies of a work that are distributed makes it clear that the work is
protected by copyright. It also makes it easier for people to identify the
copyright owner in order to request a license to use the work. Another advantage
is that someone who infringes a work which contains notice cannot claim
innocent infringement (reducing the amount of damages they are liable for).
What Should a Copyright Notice Contain?
There are elements that should be included in a copyright notice which are as
follows:
In addition to the three required elements, some copyright notices contain
additional information. For instance, some notices will contain the phrase "all
rights reserved" which is required in some Latin American countries under the
Buenos Aires Convention. Sometimes notices will also contain some type of
warning statement such as "unauthorized reproduction is prohibited by law -
Violators are subject to civil and criminal penalties." Such warnings are not
required, but are used to deter potential infringers. Finally, when someone
else’s copyrighted material has been used, the notice might state "used by
permission" to indicate that a license has been obtained.
An example of a copyright notice is provided at the
bottom of this page which indicates that I
am the copyright owner of this written material which was created in 2007. Often you will find several copyright notices in connection with a single
work since different components of the work may be individually copyrightable
and may have been created by different authors. For instance, a music CD might
include copyright notices for the sound recording as well as individual songs on
the recording and artwork on the album cover.
A copyright notice
for the #1 pop song Buttons, recorded by the
Pussycat Dolls
and written by Sean Garrett, Jamal Jones, Jason
Perry, and Nicole Scherzinger would read:
Showdy
Pimp Music & Universal Music Corporation are
music publishers that co-own the copyright
to the song. The
copyright in the sound recording of the
song, owned by
A&M Records would be indicated
by a capital "P" enclosed in a circle
(unfortunately, my computer doesn't have
this symbol).
contains step-by-step instructions for filling out Form PA although most of the
information would be applicable to other registration forms as well.
