To Register or Not To Register

If you are the creator or author of a book, play, musical composition, graphic design, photo, or other creative work, you can protect your work through a copyright. By obtaining a copyright, you are claiming ownership of your work, which comes with rights and protections.

A copyright is a bundle of rights assigned to one who creates an original work of authorship that is fixed in a tangible form that can be perceived either with or without the aid of an instrument. In the bundle are the rights to publish, perform publicly, record, reproduce, display, and make new versions of the work. The rights provided by a copyright promote expression and ensure that authors will derive benefits from their creative efforts. A copyright is the only way to protect the expression of ideas, and attaches to fixed expression automatically. Literary, dramatic, musical, and artistic works are protected by copyright. These kinds of expression can be found in motion pictures, screenplays, computer programs, novels, sculptures, songs, fabric designs, sound recordings, etc. Expression not fixed in a tangible form — ideas, methods, mathematical principles, formulas, and equations — are not protected by copyright. Therefore, in order to get a copyright, all that is required is that the expression be fixed into a tangible form. Registration is not a condition of copyright protection.

Even though registration is not required, a copyright holder can obtain additional benefits by filing for copyright registration. Copyrights are registered by the Copyright Office of the Library of Congress. Registration is a legal formality intended to make a public record of the basic facts of a particular copyright. To obtain the added benefits of a copyright registration, it is important to register a copyright within three months of a first publication. “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

Copyright registration is important for many reasons, namely, it gives you the ability to sue another for infringing your copyright and it gives you access to certain remedies including statutory damages if the registration application was filed within three months of a first publication, and attorney fees. If the registration application is not filed within three months of a first publication, statutory damages are not available, and you can only pursue actual damages, i.e., proven damages. Registration establishes a public record of a copyright claim and, if made before or within five years of publication, will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate. Registration also allows the owner of the copyright to record the registration with the United States Customs Service for protection against the importation of infringing copies.

Copyright registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. The registration of works created on or after January 1, 1978, need not be renewed. For works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages.  For questions about copyright registration, contact Parsons & Goltry online, or call 480-991-3435.