Trademark & Copyright:
Protect Your Copyrights
Copyright Registration
Copyright Registration Pt. 2
Name Your Company/Product
Trademarks - Basic Facts
Int'l Trademark Apps.
Establish Trademark Rights
Primer on the IP License
Primer on Trade Secrets
Generic NDAs Don't Work

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Related Practice Areas:
Business Transactions
Corporations
Employment Law
Internet-Computer Law
Landlord-Tenant
Limited Liability Company
Partnerships
Real Estate Law
Wills & Trusts

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Prepared By: Melissa C. Marsh, Los Angeles Business Attorney
Written: January 2001

Federal copyright protection in the United States was established by the Constitution. Since the passage of the first Copyright Act in 1790 that permitted only "maps, charts and books" to be eligible for copyright protection, almost all types of creative works fixed in a tangible medium are eligible for federal copyright protection. This includes: "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or other wise communicated, either directly or with the aid of a machine or device." The "originality" requirement is generally a relatively easy hurdle to achieve because a work will be deemed original if it was independently created and not copied from another work. The "fixation" requirement is satisfied once the work has been set in a permanent form such as a written or audio form.

A common mis-perception is that something must be done for Copyright protection to exist, e.g. mailing the work to yourself or registration with the United States Copyright Office. This is false. In fact, copyright protection automatically exists from the moment of creation for any work that satisfies the originality and fixation requirements. However, although copyright protection automatically exists, and although copyright registration is no longer required to protect a published work, there are significant benefits for the copyright owner to register their copyright.

Copyright Registration

The registration process allows the owner of any exclusive right in the automatically copyrighted work to register their work with the Copyright Office. Copyright registration is voluntary and may be effected at any time the work is still protected by copyright. That is, copyright registration is available for both unpublished and published works. Although registration is not required to establish copyright protection for a creative work, when formally registered, the copyright owner is provided with additional legal protections that far exceeds the time and cost of obtaining such registration.

Regretfully, many copyright owners neglect to obtain copyright registration for their creative works. The reasons for not obtaining copyright registration run the spectrum from "It's not required," "I don't have or want to spend the $30 registration fee," "I don't have the time to complete the registration application," to "I forgot." Although the copyright owner may have spent significant time and expense in creating and/or publishing their creative work, their failure to register the copyrighted work, or to register it in a timely manner, may preclude the copyright owner from pursuing specific remedies in the event their work suffers from copyright infringement.

Benefits To Registering Your Copyright

The copyright owner should register a work in a timely manner for the following reasons.

First, in the United States, copyright registration is a prerequisite for bringing a copyright infringement lawsuit. A copyright owner cannot proceed with a copyright infringement lawsuit unless the work has been formally registered. So then you might ask, why spend the time and money in registering the work before an infringement occurs?. Well, such a delay, at a minimum, could cost the copyright owner a significantly higher registration fee to expedite the registration of the work so that the lawsuit could be filed.

Second, where copyright registration has occurred before the infringement takes place, or within 3 months from the publication date of the work, makes the copyright registrant eligible for "statutory damages" and "legal costs and attorney's fees". If the infringement occurs before the effective date of copyright registration or after the three-month grace period, then the copyright owner will not be entitled to receive statutory damages or legal costs and attorney's fees. The effective date of copyright registration is the date when the Copyright Office receives the complete registration application that consists of the application, fee and deposit copies.

So, you might be wondering what is so good about statutory damages. Well, statutory damages permit the court to award special damages in a successful infringement lawsuit and relieve the copyright owner from the duty of the proving actual damages. Actual damages are generally very difficult to prove and in many instances the profits of the infringer are very small. The statutory damages awarded is discretionary and depend upon how willful and harmful the infringement was - usually the more deliberate and more damaging the infringement the greater the award. Furthermore, the legal costs in any copyright infringement lawsuit, particularly attorney's fees, are extremely expensive. By registering the work in a timely manner the court also has the discretion to award attorney's fees and legal costs to the copyright owner.

The third reason for registering a copyrighted work is that the Certificate of Registration serves as prima facie evidence that the work is original and is owned by the registrant of the copyrighted work. This becomes very important, if it becomes necessary for the copyright owner to obtain a preliminary injunction against a copyright infringer, such as the immediate cessation of the distribution of the infringer's work. The presumption of validity will only apply if the work has been registered within five years of the publication date.

Conclusion

The benefits received from registering a copyrighted work may be even more important than those resulting from a copyright infringement lawsuit. Why? Because the majority of copyright infringement lawsuits are settled. So why do the parties settle? Well, because such lawsuits involve a significant amount of time, cost, and money; and when the work has been properly registered in a timely manner, the copyright owner has the ability to bring the lawsuit immediately, to send a "cease and desist letter" to the infringer that incorporates demands that are backed-up by the knowledge that a lawsuit could be immediately filed and that the (i) validity of originality and ownership will be presumed, (ii) statutory damages may be awarded, and (iii) legal costs and attorney's fees may be recovered. When a copyright infringer receives such a cease and desist letter they will frequently accede to the copyright owner's demands without the copyright owner filing a lawsuit.

Recommendation:

Properly register the copyrighted work immediately upon its creation or publication.

If you have any questions, or would like the assistance of attorney Melissa C. Marsh please call 818-849-5206 or Email: Melissa C. Marsh.

Related Articles:

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• Copyright Registration Procedures
• Protect Your Copyrights - Register Them Promptly

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.

© 2001 Melissa C. Marsh. All Rights Reserved.