Businesses are constantly creating. Knowing how you acquire the rights to creative content, and how you protect those rights, is vital to any business. If you are in the business of creating copyrightable works you need to understand how to protect your intellectual property and its value.
People often misunderstand the difference between obtaining a copyright and securing the rights and remedies to protect your rights against infringers.
Acquiring the rights to a work is actually very simple. Obtaining the full array of legal remedies requires additional steps. The U.S. Copyright Office explains: “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” Simply put, your creative work is yours from the exact moment you express your creativity and that creative expression is written, recorded, or saved.
Your copyright gives you the exclusive right to do certain things with your work, or, more precisely, it gives you the right to prevent other people from doing certain things with your work.[1] You are the only one who may make or distribute copies of the work, or modify the work to make what is known as a derivative work. Anyone else who does any of these things is an infringer (although there are exceptions). Before you register your work with the U.S. Copyright office there isn’t all that much you can do to enforce your rights. You can send a cease-and-desist letter to an infringer and ask them to stop violating your copyrights in the work but you cannot sue them. You can only file a copyright infringement claim once you have registered your work. You don’t need to register your work before the infringement starts to be able to sue the infringer later, but your remedies will be limited. So, if you have created a copyrightable work, and someone else violates your exclusive rights to your work, you can then register your work, and sue them to force them to stop. You can even be awarded damages to compensate you for losses you suffered due to the infringement. However, unless you register your copyright prior to infringement, you are limited to recovering actual damages, which can be difficult to prove. In addition, you will not be able to claim statutory damages or attorneys’ fees for any infringement that occurred before you registered the work, including for infringement that started before you registered your work and continued after you registered. A federal court recently ruled that the law “leaves no room for discretion, mandating that no attorney’s fees or statutory damages be awarded so long as the infringement commenced before registration of the copyright.”[2] That means without registering the work you can make the infringer stop infringing, but you cannot be awarded damages unless you can prove actual economic loss.
If you registered the work before the infringement began, you can make a claim for statutory damages and your attorneys’ fees. Simply having the ability to claim statutory damages, and to make the infringer liable for your attorneys’ fees, providing tremendous leverage in compelling the infringer to stop take the matter seriously.
Putting a copyright notice on your work, while not required, is a good idea. If you put the infringer on notice that the work is registered with the Copyright Office, you are more likely to prove willful. In instances of willful infringement, the court is much more likely to award attorneys’ fees and can dramatically increase the statutory damages (to as much as $150,000 per infringement). If you have a copyright notice on your work, an infringer’s act of removing that notice is a violation of the statute (it may also violate your trademark rights as a false designation of origin).
Bottom line: while you don’t need to register your work or put a copyright notice on it in order to own and have exclusive rights to your creative work, you gain significant advantages when it comes to protecting your creative work by registering it with the Copyright Office. The registration process is quick, relatively simple, and cheap. The registration fees are as low as $35, and you or your attorney can submit the registration online. https://www.copyright.gov/registration/
[1] 17 USC §106: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
[2] ART OF DESIGN, INC. V. PONTOON BOAT, LLC, No. 3:16-CV-595-JD-JEM, 2017 WL 5563401 (N.D. Ind. Nov. 17, 2017)