The Basics of US Copyright Law

By Eric Perrott, Esq.

Copyright law is one of the three major forms of intellectual property, along with trademark law and patent law. Unlike trademark law, which primarily deals with brands, and patent law, which deals with inventions, copyrights protect “creative works,” and give authors and creators protection for their writings, photos, drawings, sculptures, movies, and more, like computer code and audio. To more learn more about the differences in trademarks vs. copyrights, click here.

Copyright protection is not unlimited and does not protect overarching ideas. Instead, it protects an author’s specific expression of an idea and can be used to prevent others from copying directly or creating their own work that is substantially similar to the author’s original work. While it has limits, copyright protection can be a powerful tool to stop others from stealing or otherwise making unauthorized copies of an author’s creative works.

What is a copyright registration?

A copyright is born the moment you produce a creative work–the moment you finish your drawing or the moment you take a photograph, this basic protection is created automatically, free to maintain, and valid worldwide. Because of this, registering a copyright with the US Copyright Office is not a requirement, and failure to do so will not result in a loss of the copyright itself. However, there are many benefits to copyright registration in the United States, including access to legal courts to file a lawsuit, attorneys fees, and enhanced damages. It can also help investors and buyers evaluate and recognize your copyrights as an asset for you and your business.

Federal copyright applications are filed with the US Copyright Office and, in comparison with other federal review processes, the procedure for obtaining a copyright registration is fairly simple and inexpensive. The timeline from the submission of the application to the finalized registration typically takes about four to five months; however, this time period can be extended depending on the subject matter of the copyright. Applicants are protected as of the date of the application once their copyright does register.

Benefits of obtaining a copyright

While a federal registration is not required, copyright registrants are given several key advantages:

• You can enforce your copyrights in federal court through a copyright infringement lawsuit (and realistically use that as leverage in copyright infringement disputes before litigation is filed).
• If you submit a copyright application prior to infringement occurring, you could be entitled to statutory damages up to $30,000 for unknowing infringement and $150,000 for willful infringement should litigation occur. If you decide to register your copyright as a result of infringement, you may still be entitled to actual damages, or financial compensation equivalent to the actual damages you experienced (which is typically much less than the statutory damages.)
• If you find yourself involved in litigation regarding copyright infringement, you may be able to seek compensation for your attorney fees if your copyright registration predates the enforcement matter.
• In a rapidly expanding online marketplace, it has become easier than ever for outside parties to use or copy your work without explicit permission. When online enforcement becomes necessary, the simplest way to prove that you are the authentic owner of the work is by producing your copyright registration.

Copyright requirements

When a copyright application is being considered for registration, there are two main requirements: the work must be fixed in a tangible medium and contain a “modicum” of creativity. These “fixation” and “creativity” requirements are typically a low bar, but prevent the protection of common shapes, words, short phrases, or other items that do not rise to the level of creativity required for protection.

Utilizing a copyright attorney

Despite a typically straightforward registration process, there are significant pitfalls that applicants can fall into while attempting to register a copyright. It is always in the applicant’s best interest to enlist the help of an experienced intellectual property lawyer when submitting a copyright application (for copyright registration services, contact us). This is also applicable to the nuances involved with possible litigation and multi-faceted enforcement matters. Additionally, navigating the subtleties of fair use, licensing, and transfer liabilities are all potential obstacles that may arise for the copyright owner; being prepared in advance with attorney assistance provides the best chance of prevailing when faced with copyright infringement matters and beyond.

If you require assistance in applying for a copyright registration or handling an infringement matter for an existing copyright, please contact any of the copyright attorneys at Gerben IP for a free consultation.

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Eric Perrott, Esq.

Eric Perrott, Esq. is a trademark and copyright attorney committed to providing high-quality legal services for any sized budget. Eric’s ability to counsel clients through any stage of trademark and copyright development and protection allows him to provide his clients with personalized advice and unique analysis. Eric can be reached directly at: eric@gerbenlawfirm.com. The contents of this blog are for informational purposes only and may not be relied on as legal advice.