Copyrights: Register Early, Register Often
If you’re a creator or entrepreneur who relies on creative content for your livelihood, registering your copyrights early and often can be very beneficial.
Copyrights: Register Early, Register Often
We frequently receive questions about copyright registration. Sometimes the question is focused directly on the registration process itself, and sometimes it’s more tangential, such as when an artist or entrepreneur needs to enforce their rights against infringers. This article is meant to serve as a primer and jumping off point for anyone who has artistic works they want to protect.
What is a copyright and where do they come from?
There is often confusion as to the types of content covered by copyright, as opposed to trademark or patent. Trademarks protect words or logos that are used to denote a source of goods or services in the marketplace, while patents protect novel inventions and processes. Copyrights protect artistic expression that has been fixed in a tangible medium of expression. Of importance here is that copyrights spring into existence at the moment the work is fixed, which can be easily understood as putting paint on a canvas, transcribing a musical composition, creating an audio recording, or recording video. These are just a few examples of the many ways the “fixation” requirement is met by content creators.
Why does copyright registration matter?
If copyright subsists at a work’s creation, what’s the point of registration? Registration confers a number of additional rights that can be of tremendous importance.
First, and perhaps foremost, holding a valid copyright registration is an absolute requirement to file a copyright infringement lawsuit in federal court. Until recently, some courts were allowing suits to proceed while an application for copyright was in process, while others were following the letter of the law and requiring a completed registration. In 2019 the Supreme Court of the United States took up the matter and ruled that to bring suit for copyright infringement, a plaintiff must have a registered copyright. The full text of the court’s opinion in Fourth Estate Public Benefit Corp. v. Wall-Street.com can be found at https://caselaw.findlaw.com/us-supreme-court/17-571.html.
The Supreme Court’s ruling is significant because of the time it takes to obtain a registration. At the time this article was written, receiving a registration certificate can take six months or more from the date the application is deposited with the United States Copyright Office. Applications for registration can be expedited, but the U.S. Copyright Office charges $800 to do so. For an artist or entrepreneur whose hard work has been misappropriated, a delay in justice can be monumentally frustrating.
Second, having a valid registration issued before an infringement (or within three months of the commencement of the infringing acts) opens up the availability of statutory damages and the potential for recovery of attorney fees and cost of suit. The default damages provision for copyright infringement is actual damages to the plaintiff or the defendant’s profits derived from the infringing acts. Either of these damage categories can be difficult to determine, such as cases where infringers work to hide the scale of their infringement, or might be too low by themselves to warrant the cost of filing and litigating a copyright infringement claim. Statutory damages shortcut the proof required and allow the court to award between $750 and $30,000 per work infringed or, in cases of willful infringement, up to $150,000 per work infringed. Having these options available provides significant leverage when making demands of infringers to cease their activities and provide compensation for their acts.
Where do I register copyrights?
In the United States, everything related to copyright registration is controlled by the United States Copyright Office. Their website is located at https://www.copyright.gov. The Copyright Office’s website provides a deep pool of resources to content owners, including an online application portal, PDFs of application forms for applicants that want to go that route, searches of copyright records, and a series of FAQs, known as circulars, which cover a broad range of topics relating to not just the application process, but to ownership, licensing, and other topics as well.
Conclusion
The Copyright Office’s application fee for a single work by one author is $35, which is a small price to pay for the benefits of registration. The copyright application process has been set up to be accessible to the average person and the rights conferred for a copyright registration are significant. If you’re a creator or entrepreneur who relies on creative content for your livelihood, registering your copyrights early and often can be very beneficial.
Resources
Copyright circulars: https://www.copyright.gov/circs/
Copyright online registration: https://www.copyright.gov/registration/
Copyright application forms: https://www.copyright.gov/forms/
The Monkey Selfie
Slate published this piece recently about a selfie-taking Celebes crested macaque and the copyright law consequences of the photograph. In the article, several people weigh in on whether the photograph is part of the public domain and free to use or not.
Slate published this piece recently about a selfie-taking Celebes crested macaque and the copyright law consequences of the photograph. In the article, several people weigh in on whether the photograph is part of the public domain and free to use or not. I think the analysis is spot on, but it only briefly touches on an important aspect of copyright law - how tenuous can authorship get before copyright protection is no longer granted? It's a tough question with no bright line rule.
Copyright protects "original works of authorship", which requires a minimum amount of original creative expression. For the selfie, the photographer will have a difficult time showing that the photograph was part of his creative expression since he did not intend for a monkey to steal his camera. The bar for minimum creative expression is relatively low, however, and he would have had an argument that authorship exists if he had intentionally left the camera out to achieve such photographs.
This also brings up the importance of contracts in situations like these. Had the photographer had terms of use for the photograph that did not allow for copying or distribution of the photo, he would have a breach of contract claim against the distributors regardless of whether copyright law protected the photograph.
Sugar Man Lawsuit Focuses on Missing Royalties
The story of Sixto Rodriguez, popularized in the documentary "Searching for Sugar Man", highlights what is frequently an issue for recording artists and songwriters: payment of royalties. Sometimes it's poor accounting by labels or publishers, sometimes malfeasance, and sometimes artists don't know who owns the rights to their music because the copyrights have changed hands so many times. Maintaining copies of contracts and records of payment are key to sorting out and resolving royalty underpayment!
The story of Sixto Rodriguez, popularized in the documentary "Searching for Sugar Man", highlights what is frequently an issue for recording artists and songwriters: payment of royalties. Sometimes it's poor accounting by labels or publishers, sometimes malfeasance, and sometimes artists don't know who owns the rights to their music because the copyrights have changed hands so many times. Maintaining copies of contracts and records of payment are key to sorting out and resolving royalty underpayment! - - - -
The documentary “Searching for Sugar Man” tells the story of Rodriguez, an obscure singer-songwriter from Detroit whose albums were commercial flops when released in the early 1970s, but — unknown to Rodriguez and everyone around him — later became gigantic hits in South Africa.
One of the most intriguing questions raised by the film, which was released in 2012 and won an Academy Award, was why the singer never received the proper royalties for an estimated half-million album sales in South Africa.
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An Oregon Guitar Legal Battle
Selecting and developing trademarks and brands are frequently the most important decisions a business can make. Marks that appear secure may be open to attack years or even decades later. A lawsuit filed by Korg Inc. against Jack Meussdorffer highlights how even a long-standing, vigilantly protected mark can be open to attack.
Selecting and developing trademarks and brands are frequently the most important decisions a business can make. Marks that appear secure may be open to attack years or even decades later. A lawsuit filed by Korg Inc. against Jack Meussdorffer highlights how even a long-standing, vigilantly protected mark can be open to attack. - - - - "On Sept. 3, 2013, the multinational company Korg Inc. and its affiliates filed a complaint against Meussdorffer and his Phantom Guitar Works company, seeking to cancel several of Meussdorffer's long-held trademarks and claiming "tortious interference" with the brand's own models. Meussdorffer and his legal team filed a counter-claim, and the case has slogged on ever since."
http://www.oregonlive.com/music/index.ssf/2014/04/phantom_guitar_works_vox_korg_legal_battle.html - - - -
Big Labels Take Aim at Pandora on Royalties
The outcome of a new lawsuit filed by copyright owners against Pandora Media could have far-ranging consequences for recording artists, record labels, and internet music broadcasters. The RIAA and its constituents face an uphill battle, however. Who will survive, and what will be left of them?
The outcome of a new lawsuit filed by copyright owners against Pandora Media could have far-ranging consequences for recording artists, record labels, and internet music broadcasters. The RIAA and its constituents face an uphill battle, however. Who will survive, and what will be left of them? - - - - "The music industry has opened a new front in its war against Pandora Media: royalties for songs made before 1972.
On Thursday, several major record companies filed a lawsuit in New York State Supreme Court in Manhattan, accusing Pandora of violating the state’s common-law copyright protections by using recordings of older songs without permission. Along with a string of cases filed last year against Sirius XM Radio, the suit highlights an obscure legal issue that has come to the fore with the rise of streaming music online: that recordings made before Feb. 15, 1972, are not subject to federal copyright protection and may be missing out on tens of millions of dollars in royalties, according to industry estimates."