The American government and others offer legal protections to those who create intellectual property. This guide has been written to explain the purpose of copyright registration, outline the registration process and dispel myths about alternative options.
What is a Copyright?
Why Register a Copyright?
How to Register
The Application Examination Process
Alternatives to Registration
Mandatory Deposit Copy
According to the U.S. Copyright Office, “a copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.” Both published and unpublished works are eligible for copyright protection. A copyright protects a piece of intellectual property, which is a product of creativity with rights that can be granted to the owner and transferred to another. This includes literary, dramatic, musical and artistic works. Poetry, novels, movies, songs, recordings, computer software, and architecture can all be copyrighted. Facts, ideas, systems or methods of operation are not eligible for copyright protections. These are not original creations and thus cannot be owned or protected and are in the public domain.
Patents & Trademarks
The patent is a form of legal protection for inventions and discoveries. The patent protects the work for 20 years, at which point it is released to the public. The expression of the ideas is what is protected and owned, not the ideas and discoveries themselves.
Trademarks protect words, phrases, symbols and designs that identify one service provider and distinguish an individual or organization from competitors within their market. For example, Nike’s logo, The Swoosh, and their catchphrase “Just Do It,” are trademarked.
When Does Copyright Begin?
As soon as an original work is created and fixed in a tangible form, the author(s) is granted copyright protection. It need not be registered with the Copyright Office in order to receive full protection under the law. However, Section 408 of the Copyright Act does include a process by which one can apply for registration with the U.S. Copyright Office.
Registering copyrights with the Copyright Office provides additional protection to creators. By registering, copyright owners create a public record of ownership which allows interested parties to communicate directly to them for licensing opportunities and inquiries. Registration also provides protection in the case of a legal dispute over the copyright. According to Section 411a of the Copyright Act, copyright registration is required in order for the author or owner of the work to file an infringement suit. Additionally, registration provides “prima facie” (at first sight) evidence of ownership. By establishing prima facie, the court will assume that the registered claimant owns the copyright in the case of a legal dispute.
Registered copyright owners also gain the ability to block the importation of illegal copies of their intellectual property into America.
Another benefit is offered to registrants that apply early, before or within three months after publication. By registering early, copyright owners gain the ability to obtain attorney’s fees and statutory damages in the case of a successful infringement suit.
It is important to note that a copyright registration does not mean that the registrant is automatically considered to be the creator. There are often disputes between individuals as to who created something first and who registered the copyright.
Who Can Apply for Copyright Registration?
As previously explained, copyright protection begins when an original work is first embodied in a fixed, tangible form. In some cases, such as a co-written song, there are multiple original copyright owners. Any individual contributor can register a copyright on behalf of the work and the interests of all authors will be protected, so long as they are properly listed within the application.
Copyright claims are handled differently when a work is made for hire. In these instances, the employer for whom the work was created is the original copyright owner, rather than the actual creator. In order to be considered a work for hire, the work must be created by an employee as part of their regular duties or under the terms of a written agreement which clearly states that an individual’s product will be considered a work for hire.
All unpublished foreign works are eligible for copyright protection in America. Creations that are initially published domestically or in a country that is involved in a relevant treaty with the U.S. are eligible for registration with the Copyright Office. Interested parties can learn more about the criteria for registration of foreign works here.
When Should Registration Occur?
Ideally, the application process should begin as soon as there is an intent of future publication. This is the safest route, as it creates a better chance of the registration and its benefits going into action before the work is publicly dispersed. However, registration can occur at any time within the duration of the copyright.
Applicants can complete the U.S. Copyright Office’s registration process online or through a paper application. To register, applications must have three components:
Types of Registration Applications
There are different applications provided by the Copyright Office for different types of registrations. In order to use paper forms, the work must meet the following criteria:
These forms can be obtained online or through the mail:
Copyright Registration: The Electronic Copyright Office Online System (eCO)
The online registration process is the most efficient and inexpensive copyright registration option. eCo began in July, 2008 and is responsible for 80% of copyright applications today. By registering online, applicants have access to 24-hour application status tracking, secure payments, and the ability to directly upload deposit copies.
Traditional Paper Registration
Form CO is a fill-in form with a 2D barcode that allows the copyright office to scan the form. It can be downloaded and printed at home.
Preparing & Completing Registration Forms
Note that lying on a copyright registration application is punishable by a fine of up to $2,500. The forms require the following information from the applicant:
Registering A Collection of Works
In some cases, applicants are permitted to register multiple works with one application. This saves applicants time, effort, and money by allowing them to pay one lump sum application fee, rather than pay by song. In order to register a collection of works with one application, the following criteria must be met:
Every application is examined by the Copyright Office. The inspection is only to ensure that all of the necessary information and components are provided, not to discover if the claim is based in fact or forgery. Applications that are improperly completed are returned to the sender. If an application is deemed complete, a certificate of registration will be issued.
The Copyright Office typically communicates with claimants within six months after the application is received. In cases where applicants do not receive a response for a period much longer than that, they should inquire with the Copyright Office and identify their claim and information. If a registration needs to be corrected or added to, a CA form can be filed.
Depending on which method applicants use, the registration process can take three to eleven months. In special circumstances, expedited registration can be requested in a file explaining the claimant’s situation. This emergency-only process has a turnaround time as fast as five days. These permissions are granted sparingly, only when necessary for litigation, contractual obligations, publishing deadlines or other urgent matters. There is a $760 fee for expedited registration.
If deemed necessary for legal proceedings, Section 411 of the Copyright Act permits that works may be pre-registered with the Copyright Office.
Pre-registration is a result of the 2005 Artists’ Rights and Theft Prevention Act. It was created with the intention of assisting works that were damaged by infringement occurring before public release. Works that fall under the act’s protections include motion pictures, sound recordings, musical compositions, literary works being prepared for print, computer programs, video games, and marketing photographs. The application is only available online and has a $115 fee. Applications do not require deposit copies.
There is an idea called the “poor man’s copyright” that is well-known in the copyright world. This makeshift proof of ownership method involves putting the work in a fixed form, sealing it in a package, mailing it to yourself and leaving the package unopened. The date on the package and sealed contents are supposed to prove the creation date and author name, which also marks the beginning of a copyright’s term. However, a sealed envelope is simply too easily altered to serve as enough proof of ownership in litigation proceedings. Someone could easily seal something in a package and write a different name or a date far in the past and never mail it at all and then claim that it is their proof of ownership. The “poor man’s” registration method can be used in some cases to prove the creator of the work, but it won’t hold up as enough proof to allow an individual to collect damages.
There are also various organizations like the Songwriters Guild of America that provide additional logs of copyright ownership information. Copyright owners (or anyone, really) can claim ownership and enter their work and ownership information into their registration directories. This tool can be useful for identifying copyright owners but it does not provide any of the protection legal registration does.
Section 407 of the Copyright Act creates a mandatory deposit system designed to enhance the contents of the Library of Congress. Applicants registering published works are required to deposit two copies of the best edition within three months of publication. These copies must include entire packaging, sleeves, leaflets, and booklets. Unpublished works can be deposited with just one copy, though including any deposit is discouraged to relieve the workload on the Copyright Office.
Neglecting to submit deposit copies has no real immediate negative impact. However, the Office can write a demand for it at anytime during the copyright’s duration. If a deposit is still not obtained three months after the demand is received, the individual may face a fine of up to $250 plus the price (retail) of the deposit copies. If the inaction continues, a $2,500 fine can be applied.
There are some works that are exempt from the requirement:
A copyright notice is a way of informing consumers that a work is protected by a copyright owner. The 1909 Copyright Act made them mandatory, entering any work that neglected to include a notice into the public domain. The 1976 Copyright Act slightly relaxed the requirement, adding grace for accidental errors. As a product of the Berne Convention, works published after mid-1989 are not required to contain a copyright notice. Many creators continue to include notices today. Copyright notices clearly indicate that the work is protected, identify the owner for contact, and prevent claims of “innocent copyright infringement.”
Copyright notices have three required elements:
Additional notes such as “all rights reserved” are not required to constitute a copyright notice. Copyright notices are to be placed on every reproduction of the work in “such a manner and location as to give reasonable notice of claim of copyright.” For sound recordings, they are expected to be placed on the actual physical product or label rather than the packaging. Notices are placed on labels, images or artwork accompanying digital formats.
Mamie Davis, Jacob Wunderlich, Luke Evans, Rene Merideth, Jeff Cvetkovski, & Aaron Davis