Protect Your Copyrights – Register Them Promptly
|Prepared By: Melissa C. Marsh, Los Angeles Business Attorney
Written: January 2004
U.S. copyright law offers powerful and valuable protection for what may be your key assets. Copyright law protects an author's original creative expressions in such items as literary, dramatic, musical or artistic works (including photos, drawings and diagrams), sound recordings, films, computer manuals, computer programs, computer databases, website content, source code, and important newsletters and publications. If your company has not obtained copyright registrations for its important assets, it has not taken full advantage of the intellectual property protections afforded by U.S. and international copyright law.
The owner of a copyright possesses the exclusive rights to reproduce, distribute, modify, display and perform such works. Copyright protection lasts for the life of the author plus 70 years (or in the case of films, 70 years from the death of the longest surviving of certain specified people involved in making the film).
Immediately upon creation, the owner/author owns the copyright. There is no need to mail anything to yourself in a sealed enveloped. However, copyright owners who register their works with the United States Copyright Office acquire important rights and privileges. For example, a copyright registration is a prerequisite to filing an action for copyright infringement. Assuming that registration is sought in a timely manner, in the event of infringement litigation a copyright registration may (i) establish the validity of the copyright and the registrant's ownership of the copyright, and (ii) give the copyright owner access to statutory damages and attorneys' fees. (Statutory damages range from $750-$30,000 per infringed work, or a maximum of $150,000 per work in the case of willful infringement, so statutory damages are often far greater than actual damages). Due to the significant benefits associated with copyright registration, lenders and investors often require companies to obtain copyright registrations as a condition of funding.
Obtaining legal advice regarding whether your works have been published and ensuring that your works are registered are critical to enforcing your copyrights. The Copyright Act provides that the owner of a work cannot recover statutory damages or attorneys' fees for (i) infringement of an unpublished work where the infringement commences before the effective date of copyright registration, or (ii) infringement of a published work where infringement commences after the publication date and before the copyright registration date, unless registration is effective within 3 months of the first publication date. Whether "publication" has occurred can be a contested issue in litigation, but generally publication takes place when a work is distributed to the public by sale or other transfer of ownership, or by rental, lease or lending. Printing or other reproduction of copies, or merely performing or displaying a work, do not typically constitute publication. As noted by the Copyright Office, "the dividing line between a preliminary distribution and actual publication is sometimes difficult to determine."
Court decisions reflect the importance of identifying publication dates and seeking copyright registrations in a timely manner. In the recent case of Getaped.com Inc. v. Cangemi, S.D.N.Y. No. 00 Civ. 7661 (February 28, 2002), the court found that because a web site user could view and copy the website code used to create Getaped's website and thus gain a possessory interest in the code, going live with the web site qualified as "publication" of the underlying code. Consequently, because Getaped registered the code within three months after its publication, Getaped was entitled to recover statutory damages and attorneys' fees.
As illustrated by the Getaped case, the prompt pursuit of copyright registration can be very valuable. The typical process of registering a work with the Copyright Office is relatively simple and inexpensive. The government fee for filing a copyright application is $30, and registrations are generally issued within 9-12 months (although the effective registration date will usually be the date the complete application was received by the Copyright Office). In some circumstances, the Copyright Office will expedite registration for an additional $500 fee. We have worked with a number of clients to establish in-house registration programs to ensure the regular registration of newly created materials.
If you have any questions, or would like the assistance of Melissa Marsh, please call 818-849-5206 or Send us an Email.
California business lawyer, Melissa C. Marsh, is based in Sherman Oaks and West Hollywood, and serves individuals and businesses throughout Los Angeles County, including: West Hollywood, Miracle Mile, Beverly Hills, Century City, Santa Monica, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.
© 2004 Melissa C. Marsh. All Rights Reserved.