Does the “Poor Man’s Copyright” Really Work?

Copyright Registration or Poor Man’s Copyright?

Many authors, photographers, novelists, and other creative professionals swear by the “poor man’s copyright” method: mailing copies of their own works to themselves and leaving the envelope sealed, thus “proving” legal ownership over the enclosed material.

But does this really prove anything… or is the attempt simply a waste of money?

Copyright Protection is Automatic

When you create a song, a poem, a music video, a painting, or any other piece of copyrightable work, protection is automatic. You created it; you own it.

But there’s a rather conspicuous difference between owning certain rights and protecting those rights in court.

Copyright Registration is the Only Legal Proof Accepted In Court

According to the US Copyright Office’s “Copyright Basics” publication, there are definite advantages to registering officially (despite the fact that protection does not depend upon it), arguably the most important being that in case of copyright infringement, registrations for works that originated in the United States are required in order to bring a lawsuit.

Yes, you read that right: Without a copyright registration, you cannot sue someone for copyright infringement.

Another excellent reason to register sooner rather than later involves the potential payment of legal fees, in the event of a successful outcome in court; if the official registration does not take place before the infringement or within 3 months of publication, only actual damages can be rewarded (no statutory damages or legal fees).

Suddenly, the $35 registration fee proponents of the poor-man’s copyright try to avoid doesn’t seem to large and looming anymore.

Poor Man’s Copyright Not Supported by Law

One last nail in the coffin comes by way of the same publication:

“The practice of sending a copy of your own work to yourself is sometimes called a ‘poor man’s copyright.’ There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.”

It’s clear that deciding to save money by choosing the poor-man’s copyright is a myopic view of reality, and that any rational look toward future finances supports a decision to officially register a copyright.

Sarah Kolb is senior content editor, copyright specialist, and blogger at Click&Copyright, which has been helping creative professionals register copyrights and protect their rights for over a decade.

What Is Copyright Awareness?

There is no standard definition for “Copyright Awareness”. However, some critics have argued that awareness can only be defined in the light of what is being manifested in all forms of perception, knowledge and consciousness. In each expression, awareness is revealed as the ability to perceive (perception), know (knowledge) or the state of being conscious (consciousness).

Simply defined, awareness means you aware of something. Let us say “I am aware of road accidents” it is qualified as “Road Accident Awareness”. Similarly, when “I am aware of copyright”, this also is “Copyright Awareness”. This means whenever there is awareness of something, that thing becomes the qualifying subject for awareness.

On this wise, copyright awareness is knowing that copyright exists and having knowledge about it. It is the state of having conscious knowledge about copyright in a perceived manner. When users of copyright materials exhibit this sense of awareness in an educational institution, it gives authors the opportunity to enjoy the economic value of their works and motivates their authorship.

Copyright awareness can be developed when conscious efforts are made to bring it into fruition. For instance, when copyright notices are displayed at various points where copyright materials are mostly used.

The importance of copyright awareness can be notice in its absence. That is to say that the absence of copyright can be noticed when there is the problem of uncontrolled copyright infringement activities such as illegal photocopying, plagiarism and piracy within an academic setup.

Awareness in all sphere of life is very challenging. In the same vein, Awareness of Copyright Protection has also remained a globally controversial aspect of copyright laws in respect of works eligible for copyright protection, works not protected by copyright and authors’ protection under the copyright protection. This, however, reveals that a lot of people have little or no knowledge in this regard.

On the other hand, Awareness of Copyright Infringement (ACI) can be said to be the awareness that is created when people become aware, conscious, alert, and responsive that unauthorised use of works that are copyrighted is prohibited. Some scholers argued that before we can discuss what constitutes Awareness of Copyright Infringement (ACI), it’s probably a good idea to lay out what specifically are the rights that are granted by copyright law that are likely to be infringed. For instance, in Ghana, according to Bosumprah (2009), “copyright is infringed when a work protected by copyright is used in any of the following ways without any permission from the copyright owner:

  • Reproduction, duplication, extraction or importation into the country not for personal use but for commercial purposes.
  • Distribution of the work for sale in Ghana”.

This is because a work exploited in the above mentioned manner may be prejudicial to the honour or reputation of the author. This is why section 41 of the Copyright Act, 2005 (Act 690) regards an act contrary to the rights of an author as provided under sections 5 and 6 as infringement of copyright. So, since the copyright owner has the exclusive right to do all of those things (or to permit others to do them), infringement can happen when someone does any of them without the copyright owner’s permission (Davidson, 2010).

Davidson (2010), however agrees with other scholars that “the majority of copyright infringement suits involve unauthorized… ”

  • Reproduction (as in copying a work) through photocopying, and this according to Panethiere (2005), is one of the common ways of infringing copyright in literary works.
  • Distributing (as in copies of the work) through piracy. According to Panethiere (2005) this happens through unauthorised manufacturing and selling of works in copyright – what Osman (2010) regarded as Counterfeitingor the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity.
  • Use of someone else’s ideas or words, as in plagiarism, or using someone else’s ideas or words without properly crediting the source, Osman (2010).

Further to this, Panethiere (2005) argued that

“itis not necessary for a whole work to be reproduced or for more than one reproduction to be made for an infringement of copyright to occur. An infringement of copyright occurs so long as a substantial portion of a work is reproduced or other copyright use is made of it”.

This is because what is a substantial portion is often subjected to a qualitative rather than a quantitative test. It is the quality or essence of what has been taken rather than the amount that is taken that will often determine whether the portion taken is substantial or not.

Current State of Copyright Awareness in Education

Many scholars believe that the rate of frequent copyright infringements among students and other users of copyright materials in academic environment is an indication that the awareness of copyright is still extremely low, especially, today that technology has made it easier to photocopy, plagiarize and pirate other peoples materials. This shows that there is little respect for creativity, so copyright protection is considered unnecessary. The high price of foreign and quality books is another major factor. As they are luxury goods, people still like pirated books.

It is however worrying to note once again that the issue of copyright has now become a global concern and infringement of copyright law has also received prominence, especially in the academic environment where a larger group of copyrighted material users are found. for instance, in an educational institution where lecturers rely on copyrighted materials to teach their students as the students also often consult copyrighted materials to meet their educational requirements, in such an environment, it is admitted that lack of copyright awareness may result in uncontrollable copyright infringement activities.

The fact that what pertains in other foreign universities seems to be absent in most Ghanaian universities on copyright awareness is a great worrying to the copyright industry.

One may even wonder what happens at a university where there is no copyright and access policies in this era where copyright infringement has become more evident with the emergence of advanced technology, as it is now possible to copy and use literary works that are likely to be protected by copyright. The situation at most Ghanaian schools reveal that many students, who cannot afford the prices of materials and textbooks, now make photocopies of essential texts and materials for their education at a low cost in the detriment of the copyright holders.

However it can only be concluded that the detriments caused by copyright infringement do not only affect authors but also publishers and other stakeholders in the publishing industry as a whole.

Considering that schools forms part of the major users of copyright-protected materials in Ghana, it is right to conclude that based upon the role of copyright in our knowledge-based economy, it is important that any serious enquiry into the subject of intellectual property (IP) has to consider this crucially important role of copyright in the production and dissemination of knowledge and knowledge-based products.

This is because most Ghanaian schools have library blocks resourced with various copyright-protected materials which are made available to both students and lecturers for the production of term papers, essays, report, thesis or dissertation, articles, journals and other scholarly publications by the students and lecturers. This suggests that the schools must therefore be positioned to effectively advocate their academic and institutional values and defend its teaching, research and service mission through effective copyright awareness.

Top 10 Reasons to Register Your Copyright

The sheer act of creating an original piece of art makes it yours and yours alone. That unique beat, the words to a song, steps to a dance, or outline to a TV pilot: It’s your intellectual property. This property, like real estate or a bank account, holds value and you should protect it. Certainly, if someone is to become famous from your musical ideas or reap vast profits from their sale, it should be you and not the person who ripped your ideas off.

In an ideal world, no one would steal intellectual property and claim it as theirs. Even in a perfect world people can still innocently and independently create works of art that are functionally identical. Proving that you created the work of art first would be a difficult task at best. Nevertheless, just like there are vaults to protect your money and deeds to prove you own land, the law provides a simple way to protect your intellectual property: registering a copyright. With due apologies to David Letterman, and in no specific order, here are the 10 Ten Reasons to Register a Copyright:

1. A registered copyright puts the rest of the world on notice. It’s your legal proclamation to the world that you own certain intellectual property and unauthorized copies are illegal. Registration warns would be thieves that any larceny of your ideas is at their own risk.

2. A registered copyright protects your intellectual property from innocent, but unauthorized, reproduction. A famous example of this occurred when David Bowie sued Vanilla Ice for copyright violation over the hook to “Ice, Ice Bay.” Even though Vanilla Ice claimed he innocently copied the beat (later retracted), he still owed David Bowie compensation for its use without permission.

3. A registered copyright gives credit where credit is due. This is a legal, public record that you are the author of a work of art, not someone else. Registration vindicates a very important principle beyond issues of money.

4. A registered copyright let’s you sue for ‘statutory damages’ and attorney fees. In simple terms, suing for statutory damages means you don’t have to prove that you actually suffered harm from a copyright violation. A typical lawsuit requires proving harm. You can sue for up to $150,000 for an intentional violation and up to $30,000 for an unintentional violation. CAUTION: you must register your copyright within 3 months of making it public to be able to sue for statutory damages.

5. A registered copyright, in a copyright infringement lawsuit, provides clear evidence that you own certain intellectual property. This means that the defendant in the lawsuit has the burden of proving that no violation occurred or they lose.

6. A registered copyright allows you to record the copyright with U.S. Customs. U.S. Customs in turn will protect you against the importation of illegal copies from other countries.

7. A registered copyright let’s you stop someone from making illegal copies. You can obtain a court order that forces an infringing party to cease and desist from their infringement. This is what occurred when record labels sued Napster.

8. A registered copyright is necessary to sue for copyright infringement. In order to take advantage of the system, you need to be a player. You gain significant legal protection by registering your copyright under the laws of copyright.

9. A registered copyright provides legal protection beyond death. U.S. Copyright laws often create a situation where your copyright can still be enforced after you’re long gone. Although you can’t take riches to heaven, this would be important for someone who wants to provide for loved ones after they’re gone.

10. A registered copyright saves time and money. It’s certainly possibly to sue someone for stealing your intellectual property even without a registered copyright, it’s just not a good idea. For some reason, waving a certificate of copyright, rather than lyrics scribbled on a napkin, just seems to go over better in court. Registering a copyright makes this legal process much more simple and cost effective when an attorney is necessary.

This is my list of the top 10 reasons to register a copyright. It doesn’t mean that there are only 10 reasons, though, or that we can agree these are the 10 most important reasons. What other reasons are there to register a copyright or why do you think one reason is more important than another?

Ari Good

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

Copyright For Non-Lawyers

If you make a short film that includes someone singing “Happy Birthday to You,” until recently you could expect to pay a hefty licensing fee to Warner Music Group – or a heftier fine, if you used it without permission. A class action suit is currently trying to change that.

Once, this decision would have only concerned those involved in the professional production of film, TV or theater. These days, it concerns anyone with a YouTube, Vimeo or Vine account.

The Internet, along with the social media networks built on it, has created a plethora of opportunities for those who create video, music, photographs and writing to publish their work in formats with the potential for wide distribution. While only a fraction of us want to earn our living solely through the works we create, and only a small subset of that group succeeds, copyright questions have suddenly become important to many of us who would never have otherwise considered them.

First, a basic definition: What is copyright, in layman’s terms? In the United States, copyright law extends certain protections for published and unpublished “works of authorship.” This covers a variety of forms of expression, some of which are obvious – books, movies, songs – and some of which are not as well known outside their professional fields – computer code, software, architectural design. The deciding factor is that the work must be fixed in a “tangible mode of expression.” Choreography that has not been notated or recorded, for example, cannot be copyrighted until it is fixed in a durable medium. You can’t copyright ideas.

This requirement is one of the factors that distinguish copyright protection from the protection extended by a patent or a trademark. A patent is meant to cover an invention or a discovery in the abstract, rather than a concrete expression of an idea. For example, there is a current legal debate over whether the idea of podcasting – a broadcast available on demand – has been legally patented and by whom; meanwhile, most individual podcasts are indisputably protected by copyright. This protection is unrelated to the patent debate. Both patents and copyright are matters of federal law.

Trademarks, on the other hand, are words, phrases or designs used to distinguish the goods of one party from those of others. (Service marks are more or less the same, but distinguish the providers of services; the term “trademark” is often used conversationally to cover service marks as well.) An artistic design is automatically protected by copyright, but can also be trademarked, which offers overlapping, but not identical, legal protection. While federal trademark law exists, the majority of trademark law functions at the state level.

One of the major differences between copyright and patents or trademarks is that you have to file to receive either of the latter two. In contrast, copyright protection automatically extends to any work that is eligible from the moment of the work’s creation. Creators can, however, voluntarily register their work with the U.S. Copyright Office. While this step is not required for copyright protection, it does confer several benefits. It makes the copyright a matter of public record and grants a concrete certificate of registration to the copyright holder. It is also necessary to register a copyright before taking any legal action against those violating it; it is generally easier and more effective to register before there is any dispute about the identity of the true copyright holder.

For those who wish to register, the U.S. Copyright Office provides the forms online; registration can be completed electronically or by mail. Registration involves an application form, a nominal but nonrefundable filing fee and a nonreturnable copy of the work being registered. It is generally simple enough for a layperson to prepare without help from an attorney. The application must be filed by the copyright claimant, who is either the author of the work or the author’s employer (if the work was created for hire); the owner of the exclusive rights to the copyright, if the claimant has sold or granted them to another party; or the legal representative of the claimant (such as someone who holds the author’s power of attorney).

In the past, people would sometimes mail their work to themselves, in what was known as a “poor man’s copyright,” in order to protect unpublished works. However, under current copyright law, this is unnecessary for copyright protection and doesn’t substitute for copyright registration, so it serves no real purpose. Since 1989, creators have not been required to include a copyright symbol (©) with their copyrighted work. Voluntarily including it, however, can cut down on later claims of copyright infringement through ignorance.

It’s important to remember that a work’s copyright, registered or otherwise, is not without limits. One such limit is time. For works that were created on or after January 1, 1978, the copyright automatically extends for the author’s life plus 70 additional years. If more than one author created the work, the term is 70 years past the last surviving author’s death. If the work was made for hire, or the author is unknown, the copyright extends for the shorter of 95 years from publication or 120 years from creation. (The rules vary for works created before 1978.) After the term of copyright expires, works enter the public domain, meaning anyone may freely use them without prior permission.

There are some instances in which people are also free to use works that are still under copyright, under what is called the “fair use” doctrine. If you are the copyright holder, many rights to the work are exclusive to you. This includes most instances of reproduction (i.e. copying), but there are cases in which someone may copy your work without your permission. Whether or not a particular case is fair use is usually determined by a combination of four factors:

  • Whether the use is commercial in nature or intended for non-profit or educational benefit;
  • The nature of the work being copied;
  • The amount of the work being copied in relation to the size of the work as a whole; and
  • The effect upon the market value of the original work.

There are no hard and fast rules as to when a particular use is in violation. For example, there is no maximum number of lines of print or seconds of a recording that will automatically qualify use as unlawful. Acknowledging an author by name does not substitute for obtaining actual permission to use a work. The courts, however, have established that certain uses, such as a teacher reproducing a work for use in a lesson or a brief quotation appearing in a journalistic article, are almost always legal.

Some creators also waive some of their automatic copyright protections. They may do this for a variety of reasons. Certain creators waive some of their rights as copyright holders deliberately, either for ideological reasons or in order to promote their work. Some authors feel that The Copyright Act of 1976, which remains the basis for most U.S. copyright law, is too restrictive and overprotects existing works to the detriment of new ones. They choose to waive rights as a way of leveling the playing field. Other creators simply want to make it easier for their fans or followers to redistribute their work, as a means of garnering publicity and making their voices heard. Creative Commons, a non-profit organization, is one of the most prominent organizations working to allow creators to legally waive certain rights while retaining others.

Creators also sometimes waive copyright protections in a less deliberate way. One of the major ways they may give up some or all of their rights as creators is to share their work on social media platforms, whose terms of service include language limiting users’ rights to works that they post. The photo-sharing service Instagram caused a backlash among users last year when, three months after its acquisition by Facebook, it changed its terms of use in a way that many interpreted as a precursor to selling users’ photos or using them in advertisements without the photographers’ permission. In response to user outcry, Instagram removed the objectionable language. Its terms’ current language is more standard; users retain full ownership of their photos, but grant Instagram a non-exclusive, royalty-free license to the images.

Instagram is not an exception. Sites like Facebook, Twitter and Pinterest also specify similar licensing arrangements in their terms of service for anything you post to which you hold the copyright. Yahoo!’s photo-sharing site, Flickr, allows you to set the default licenses on your photos from full protection (regular copyright) through “no rights reserved,” but also specifies that users grant Yahoo! a royalty-free license to use the content on its own site unless and until they remove the images. While social media services generally incorporate such licenses mainly to allow their operations to function, it’s important to realize that by sharing a photo on Facebook or Twitter, you are voluntarily waiving some of your copyright protection to the image. You should keep an eye on any changes in terms of service for sites you currently use and carefully review the terms of service when signing up with a new platform.

What if you have created something from which you wish to profit directly? As a copyright holder, you are free to reproduce, perform or display the work as you like and charge for doing so. A person buying a copy of the work does not affect your copyright; you don’t, for example, have any right to a book just because you purchased a hardback copy. If you record an original song, you can sell as many copies of that song as you like without damaging your copyright in any way.

Another method for profiting on your work is via advertising revenue. This is a bit more complicated, and the details are beyond the scope of this article. However, programs such as the YouTube Partners program or Google’s AdSense for Blogger allow you to earn revenue in exchange for pairing your original content (such as videos or blog posts) with third-party advertisements. As the owner of your content, you have the option to profit this way if you so choose.

If you create something that fills a need or becomes popular, you can also consider selling licenses to others who wish to use your work. They might wish to use it in a derivative work – for example, playing the song you wrote and performed over the credits of their film or setting a poem you published to their own music. Or they might simply wish to distribute your work, such as showing a film you made at their independent theater. Depending on what they want to do with the work and your own preferences, they may only need to obtain your explicit permission, or they may need to pay you (a one-time fee, a recurring fee or residuals). You can limit your permission to use the work for a certain time or in a certain way. There are no legal requirements for this sort of agreement; it’s up to the two parties to work out an arrangement that suits them both.

If you plan to license your work, you should definitely register with the Copyright Office in order to protect yourself. Given the potential complexity involved, if you choose to license your work, it may be best to involve an attorney who specializes in intellectual property. The attorney can help you draft a license or license template that reflects your intentions. Even if you do not seek professional advice, you should formulate your agreements in writing so that both you and the licensee are clear on the terms before there is any exchange of your work. While it is possible to transfer a copyright altogether, it is probably best to think long and hard before doing so, since you would give up all future right to the work.

What happens if someone uses your work without your permission? As long as you have registered your work with the Copyright Office and believe the instance does not fall under fair use, you can choose to pursue the infringer in civil court. However, before you do, it is important to consider whether it is worth the time and legal fees you may incur. There is a difference between someone selling a book that mostly plagiarizes your words and a teenager posting a photo you shared on Instagram on her blog without crediting you, though both are technically infringement. You are unlikely to be awarded much, if anything, in the way of damages for the latter.

Before pursuing legal action, you may consider contacting the infringer to inform them of their infringement and ask them to stop using the work. If they are sharing the work through an Internet service, you can also contact the website to let them know the user is in violation of copyright. This often violates a website’s terms of service, and the company may take action accordingly. If the infringement is serious enough to warrant litigation, it is wise to seek legal counsel before making contact or filing a complaint with the government. (The FBI is responsible for pursing intellectual property violations.)

Copyright is complicated, but U.S. law is generally on the creator’s side. In a world in which we share our thoughts and images freely, taking the time to know your own rights can keep you and your work protected.

Entertainment Law – How To Register Your Copyrights

You’ve created a song and want to protect your rights in it. As you may know, your song (or your short story, painting, etc.) is protected as soon as it is “fixed in a tangible medium of expression,” which means as soon as it’s written down, video taped, recorded, etc. Even without registering the copyright with the U.S. Copyright Office, you have certain rights in your song. You can potentially stop others from using it. But, there are three main additional benefits to registration:

(1) it creates a presumption of ownership and validity, so long as you register within five years of the date on which you release the work to the public;

(2) if you register the work before it is infringed, or in any case within three months of the date of publication, then you may be entitled to statutory damages and attorney’s fees; and

(3) you don’t have to wait to bring suit against an infringer (registration is almost[1] always a prerequisite to bringing suit).

Fortunately, registration is both cheap (especially compared to its potential benefits) and easy. There is no reason why you can’t register your copyrights yourself. In fact, while usually government websites are an absolute mess, the first place you should visit is the Copyright Office’s website. There you will find a wealth of well-organized information, including some so-called “circulars” which explain everything from the nature of copyright to the exciting world of vessel hull registrations. However, what follows is a plain English explanation of the registration process and some helpful tips on registration generally.

The Cost of Registration and the Benefits of Filing Online

If you’re reading this article, then you probably have access to the internet. That’s good news, because filing your registration online with the Copyright Office only costs $35 per registration. To file online, visit the Copyright Office’s website and click on the eCO Login at the top right of the screen. Before proceeding, you must register as a user (which you do by providing some basic information and creating a username and password). Once you register as a user, you will be able to log in and file your registration online-you can even upload documents to satisfy your deposit requirement (more on that later).

Now, for the sake of completeness, I’d like to point out that you can still file your registration the old fashioned way, using real paper. The next cheapest method of registration is the Fill-In Form CO. Like it’s name suggests, this is the same form you would use if you eCO filed, it’s just provided to you in a form where you can print it out and fill it in and mail it back to the Copyright Office. However, for that privilege the Copyright Office charges you $50.

If you are really old school and want to register using the old paper forms,[2] then you may do so for a fee of $65. The only real difference between these forms is the price. Clearly the Copyright Office wants to eliminate paper as much as possible, and the old paper forms are priced higher than the Fill-In Form CO because the latter use special barcode technology that enables the Copyright Office to process them more easily. If you can, then you should save money and time by eCO filing.

Having registered as a user, you are now ready to begin registration. There are three elements to a successful copyright registration: (1) completion of the eCO Form; (2) payment of the registration fee; and (3) the submission of deposit materials.

The Form

Once you create a user profile and log into your account, click on “Register a New Claim,” and then “Start Registration.” There are 12 parts to the application, most of which require some input from you, as described below.

(1) Type of Work

Naturally, you must tell the Copyright Office what type of “work” you are registering. By “work,” the Copyright Office means the thing being registered. There are seven categories of works, and the work you are seeking to register must fit into one of them:

Literary Work. Examples include books, computer programs, compilations, instruction manuals, and speeches.

Work of the Visual Arts. Examples include sculptures, paintings, photographs, murals, bumper stickers, decals, cartoons, games, greeting cards, and jewelry.

Sound Recording. Examples include any audio recordings (e.g., of music, songs, and audio books).

Work of the Performing Arts. Examples include ballets, operas, and musical compositions.

Motion Picture/Audiovisual Work. Examples include videos, films, and television recordings.

Mask Work. Examples include semiconductor chip registrations (yes, you can register the copyright in those, too).

Single Serial Issue. Examples include periodicals, newspapers, magazines, bulletins, newsletters, and journals.

Usually, you’ll know right away which category you work fits into (and you can only pick one). But the plot thickens if you are, for example, seeking to register a book that contains a few photographs in it. In that case, you have on your hands what is referred to somewhat cryptically by the Copyright Office as a “work that includes more than one type of authorship.” The Copyright Office advises you to pick the authorship that predominates the work.

In other words, is it mostly a book that has a few photographs in it? If so, then register it as a literary work. Conversely, if it is mostly a book of photographs that has some limited accompanying text, then register it as a work of visual art. Note that no matter how you decide to designate the work, all the elements contained in it will be protected. In other words, you won’t have to register the same work as both a literary work and as a work of the visual arts in order to protect it. What if the forms of authorship are truly equal? Well, just pick the one you like best. So long as you properly describe your contribution to the work in subsequent sections of the eCO Form, you’ll be covered.

The one exception to that rule is for songs. As you may know, songs can be divided into different copyrights. You have the copyright in the sound recording, which is the recorded version of your song, and you have the copyright in the musical composition, which is the elements that comprise the song, i.e., the melody and lyrics. In the olden days, you had to register the copyright in the sound recording (as a sound recording) and the copyright in the musical composition (as a work of performing art).

Assuming you own both copyrights yourself and did not transfer them away, you only have to register the copyright in the sound recording, and then make sure you properly describe your contribution to the work in a way that includes the performance art elements, and you can obtain protection under both categories. Note, though, that you cannot choose the work of performance art category and then claim the sound recording copyright too. You must choose the sound recording category in order to capture both copyrights.

(2) Titles

Let’s say you picked Sound Recording and pressed “Continue” at the top of the screen. Next, you must title the work. Remember to be careful when entering in the name of the work-the name must exactly match the name as it is used on the product you distribute to the public. Add the name and take a minute to verify that it was entered in correctly. If so, click “Continue” to proceed. (You’ll have a chance to verify this information later.)

One question that particularly musicians ask is whether they must file separate copyright registrations for each song on the album (which could get prohibitively expensive). The short answer is no. The Copyright Office does allow you to register songs as “collections.” So long as you are the author of all of the songs (either the sole author or one of the contributing authors), then you can register as many songs as you want at once.

Note, though, that certain restrictions may apply depending on whether the collection of songs is published or unpublished and whether the ownership in the copyright is the same across all works. These nuances are beyond the scope of this particular article, but you can always contact an attorney if you have any specific questions relating to that subject.

I will provide one word of caution with respect to registering songs in collections. You can only claim one instance of copyright infringement per collection. This means that someone could steal every song in your collection, but because you registered the songs as one collection, you can only collect damages for one act of infringement. Conversely, if you had registered all of the songs individually, then you could collect damages for as many of the songs as were infringed. I do understand that most musicians can’t afford to register 12 separate songs.

My suggestion is to register songs in collections, but then also submit separate registrations for songs designated as singles. Or (and this is a riskier solution) wait and see which songs from the record are popular and then register the copyrights in those. This way, you get the extra protection of an individual copyright registration, while also protecting the other songs in the collection.

(3) Publication/Completion

Whether or not a work has been “published” affects what you will need to submit to the Copyright Office in order to register the work (what you must submit is known as the “deposit requirement,” and it is one of the three elements you need to successfully register a copyright). The Copyright Office says publication results from:

[T]he distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. A work is also “published” if there has been an offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display. A public performance or display does not, by itself, constitute “publication.”

Admittedly, that’s a confusing definition in that in leaves a lot of questions unanswered. For example, is a work “published” if you post it online? The answer is “probably,” but it depends. The above definition also does not specifically contemplate electronic transmissions, but you can reasonably assume that if you post something on the internet, it has been distributed to the public when they view that image on their computers. Still, if you posted the work on your private website that only certain people can access, then maybe it hasn’t been published as that process is defined above. Ultimately, you must decide that question yourself.

Whether or not a work has been published, and if it has, then when it was first published, does have a bearing on the copyright registration. In the interest of space, I won’t get into the nuances of those issues (although feel free to contact me if you have any specific questions). However, the question of how a work’s publication status affects what deposit materials you must submit is addressed in more detail below.

Now, let’s say you selected “yes” to the question of whether the work has been published. You must then complete a form that prompts you to enter some additional information, including the date on which the work was originally published. If you don’t have an exact date, don’t worry: just make an educated guess.

(4) Authors

The author is either the person who created the work or the organization that was the author if the work was made for hire. If more than one person contributed copyrightable elements to a work, then you’ll need to list the various authors. First – if you are the author or one of the authors – click “Add Me.” Then, select your contributions to the (in this case) sound recording.

Let’s say you wrote the lyrics, produced the track, performed on the recording, and-because you self recorded and didn’t transfer your copyright in the sound recording to a record company-you own a portion of the sound recording. Then you’d select those four boxes from the menu. If you need to add other authors, then you may do so, listing their names and then selecting their respective contributions. Let’s say you need to add Bob as an author. Bob wrote the music to the song, performed on the song, and owns part of the sound recording. Then you’d select those boxes for Bob. And so on and so forth for any other copyrightable contributions made to the sound recording.

Note that I use the word “copyrightable” intentionally because the contributions you’re registering must at least be sufficiently original to warrant copyright protection in the first place. For example, the guy who cleans the studio at night might be integral to your creative process, but he did not contribute copyrightable elements to the sound recording by merely being present in the studio. Now, if he picked up an instrument or suggested a chord change, then that is another issue. In fact, you’ll notice that this “authorship” situation can get a little messy. Some bandleaders chose to have their musicians sign work for hire agreement in which they assign their rights in the music to the bandleader. This practice protects you down the road if your song becomes a hit and suddenly the guy who contributed handclaps to the record thinks he deserves part of the copyright in the song, and therefore part of the money it’s bringing in. But, again, that’s the subject of another article.

(5) Claimants

The “claimant” is either the author or the organization to which the author transferred the entire copyright. The claimant will often be the same person as the author of the work. For example, if you are registering your own song, and you own the rights to it, then you would be both the author and the claimant. But sometimes a record company will make you transfer the copyright in the sound recording to them. In that case, they would list you as the author of the work, but then list themselves as the claimant. If you are the author and retain the copyright and you are the claimant, then click “Add Me.”

(6) Limitation of Claim

Does part of your song include an old folk song that is in the public domain, i.e., it’s a folk song from the 1800s and you are using you own arrangement of it? Here is the portion of the registration where you would want to list that information. Maybe your song contains a sample. Or maybe you re-wrote a song of yours that you had previously registered. Usually, you’ll just leave these fields blank, but in the event one of these exceptions applies, you’ll need to enter the information requested accordingly. Although you want to answer these questions honestly, you ultimately want your claim to be as broad as possible, so make sure you aren’t listing any unnecessary limitations here.

(7) Rights & Permissions

What if someone hears your song and wants to use it in a blockbuster movie starring Will Smith’s son, Jaden? The information you list on this portion of the form will allow that person to contact you directly to license it from you. Or, if you’d prefer they contact someone else, you can list that information too. Maybe you have a company that handles such requests, or an attorney. List the appropriate entity, and keep in mind that the information you list here becomes public information, so only use your home address if you’re comfortable with that. If not, then find a third party agent to use or acquire a post office box. Click “Add Me” if this is you and you don’t mind your address being used.

(8) Correspondent

Again, this is probably you-the correspondent is merely the person the Copyright Office will contact if it has questions about the application. Sometimes this field will be occupied by your attorney’s contact information if he or she is completing the application for you. As before, click “Add Me” if this is you. This information will not appear in the public record, so you can use your home address if you’d like.

(9) Mail Certificate

This is where the Copyright Office will mail your fancy certificate once your work is registered. Click “Add Me” if this is you. This information will also not appear in the public record, so you can use your home address if you’d like.

(10) Special Handling

Remember how I told you that one benefit of early registration is you’ll be ready if someone infringes your copyright? If you don’t register before the act of infringement, then you’ll have to register in order to bring suit. And you can’t bring suit until you have the registration in hand, unless you live in a jurisdiction where only filing is required. Which means you either have to wait up to eight additional months, or you pay $760 on top of the $35 registration fee to have the registration expedited. If you have to do that, here is where you ask for it. You must have a “compelling reason” for the expedited registration. One of the listed “compelling reasons” is pending or prospective litigation. Select if appropriate. If you don’t need special handling, then skip this portion of the form.

(11) Certification

Here is where you swear that all the information you entered is correct.

(12) Review Submission

Here is where you double-check all of your information.

The Fee

Once the above steps are completed, you’ll need to pay. Here is where you do that.

The Deposit

Now that you’ve fully described the work and provided other relevant information-and of course after you’ve paid Uncle Sam-you must satisfy the Copyright Office’s deposit requirement for the type of work you’re registering. Unfortunately, knowing what to submit is not easy. The general rule for deposit materials is that if the work is unpublished, then you must submit one complete copy of the work, and if the work is published, then you must submit two complete copies or the “best edition” of the work.[3]

If you’re registering a Sound Recording, then this requirement is fairly easily met-simply submit either one or two copies of the sound recording on a CD (or upload the tracks if that is an option). Similarly, for a literary work, you would simply mail or upload either one or two copies of the novel, poem, etc. However, if you’re attempting to register visual art, then this requirement become a little confusing and in some cases very burdensome.

First, remember that displaying the work publicly, without more, does not necessarily constitute “publication.” So if you’re registering that painting you have hanging on a wall of an art gallery, then you’re probably registering an “unpublished” work, and as such will only have to submit what the Copyright Office refers to as “identifying material,” i.e., a photograph clearly depicting the complete work.

On the other hand, if you had prints of the painting made and are selling them, then you have most likely “published” the work, and now you must submit two complete copies of the work (which in this case would be the prints you are selling). Similarly, if you’re registering a three-dimensional sculpture, or artwork that is attached to a three-dimensional object, then whether the work is published or not, you still only need to submit identifying material, because submitting a copy is not practical.

Sound confusing? Fortunately, the Copyright Office provides a handy little chart, which does a good job of describing what deposit materials are needed for each kind of visual artwork. However, note that even if-according to the chart-you must submit a complete copy of the work, you may still seek relief under 37 CFR § 202.20(d)-(e). Basically, those statutory provisions allow you to ask the Copyright Office to waive the deposit requirement for you due to special circumstances-e.g., if for whatever reason the work is just not capable of being copied or it would be overwhelmingly burdensome for you to have to copy it. However, you must affirmatively ask for such special relief in writing, and of course your request must be granted in order for your registration to proceed.

Final Thoughts

Remember that, while you don’t technically have to put the “(c)” on the work in order to retain copyright protection, you should, as it puts the world on notice that a copyright is claimed. That notice can prevent a defendant from claiming innocent infringement in a court of law, and the presence of the notice may also bolster your argument for willful infringement, which would very significantly increase your damages. Make sure to put the “(c)” followed by the year of publication and then your name.

Finally, note that the date of your registration is not the date you receive your certificate of registration, but rather the date on which the Copyright Office receives what they need to register the copyright. If you completed the eCO Form correctly, then that should be the day you submitted the completed online application. That’s it! Your work is on its way to being registered by the Copyright Office. Now go celebrate by creating (and then promptly registering) more art.

[1] I use the word “almost” here because some jurisdictions do allow you to initiate a lawsuit upon the filing of your registration. However, you’ll need to consult case law to determine whether your jurisdiction is filing-only jurisdiction. An attorney can help.

[2]Specifically, Forms PA, SR, TX, VA, and SE, which stand for performing arts, sound recordings, literary works, visual works, and single serial issues, respectively. While those forms are not used as much these days, the distinction between the various types of registrations is important, as will be seen.

[3] The “best edition” applies if the work has been published in different editions, in which case you would submit whichever edition was larger, was printed on better paper, had more colors, etc.

5 Reasons to Register Your Works With the US Copyright Office

For nearly 200 years, if you published your work without a copyright notice and without registering your copyright, U.S. copyright law provided that the work fell into the public domain. You lost all rights to challenge any infringement. Fortunately for authors and creators of other works subject to copyright protection, that is no longer true.

Under current U.S. law, copyright protection exists as soon as the work is created. The basic protection of copyright ownership no longer requires that you register your copyright registration with the U.S. Copyright Office. However, in many cases it still makes sense for an author of a work to register the copyright obtain rights beyond those in an unregistered work.

Even though copyright protection is obtained automatically when you create the work, there are certain definite advantages to copyright registration.

Here are 5 reasons you may benefit from copyright registration:

Reason #1: Registration establishes a public record of your copyright claim. Although there are other ways to establish your copyright claim, such as through witness testimony or other evidence, it is hard to beat the absolute certainty of a public record.

Reason #2: You cannot bring an infringement lawsuit for works of U.S. origin until after you have registered your copyright.

Reason #3: If your registration is made before or within five years of the date you first publish the work, the registration establishes prima facie evidence in court of the validity of your copyright and of the facts stated in the certificate of copyright registration.

Reason #4: If registration is made within three months after the date you first publish the work or prior to an infringement of the work, you may be entitled to be awarded statutory damages and attorney’s fees in a court action. In many cases, statutory damages and attorney’s fees are much higher than any actual monetary damages you would be able to prove to have occurred as a result of the infringement.

Reason #5: Registration allows you, as owner of the copyright, to record the registration with the U.S. Customs Service for protection against importation of infringing copies.

In light of the substantial benefits of copyright registration, and the relative ease and low cost of registration, registering your copyright still makes good sense in many cases.

Copyright 101: Understanding Copyright Law and How to License Your Artwork As a Designer

Copyright/Licensing Info:

U.S. Constitution, Article 1, Section 8 empowers Congress to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” -the basis of copyright laws of today

In today’s visual world, the work created by a graphic designer are among the most powerful vehicles for communicating ideas in our society and generating revenue for a particular client. A successful logo, ad campaign, commercial or overall branding of a company, can evoke a company’s goodwill in the public mind and move an entire population to action.

© Copyright: an artist’s right to control the use of their original creative art (which also provides the basis for pricing, licensing and fair trade practices)

1978 – Copyright Act became effective

1989 – U.S. copyright law automatically protects original artwork from the moment of its creation even without inscribing a copyright notice which always allows the artist to assert a claim for copyright infringement even if he or she has not previously registered the work in question.

1998 – The Digital Millennium Copyright Act (DMCA) became effective also including the digital network environment as well as print, film and recording media.

Copyright term: Artist’s life + 70 years

Trademarks: TM or ®
While a copyright protects an artistic or literary work and a patent protects an invention, a trademark protects its name or identity.

A valid trademark gives the owner the right to prevent others from using a mark that might be confusingly similar to the owner’s mark especially if someone else uses the mark for similar goods or services thus respecting the owner’s intellectual property.

The ® symbol, however, may ONLY be used AFTER the U.S. Government grants a federal registration certificate. (Nike, Mercedes, etc… ). Being registered through the federal government entitles you to more rights in case of infringement throughout the United States, even in geographical areas in which the trademark is not used.

Licensing Rights:
Licensing copyright rights to a client for use and reuse or reproduction of a design, ad campaign, logo, etc… for a particular purpose, for a particular length of time, or for a particular geographic area for a fee is an issue of basic fairness and standard business practice in the industry.

An artist’s copyright is actually a bundle of individual rights. Each specific use can be transferred outright or licensed separately for a specific length of time. Fees are determined primarily by the value agreed upon between the licensor (artist) and licensee (client). Any rights not transferred explicitly in writing remain the property of the creator.

*In the design/advertising industry, the value of a particular work of art or design is influenced greatly by its use.

Artists can license their work on either a flat licensing fee or on a royalty fee for a specified period of time as agreed by both the licensor (artist) and licensee (client).

It is very important to be specific as each type of design and level of usage influence the final value of the artwork AND scope of the amount of design work to be completed. This information will ultimately assist in finalizing the price structure for the designer and creative budget for the client.

Setting Rates:
Rates vary by several deciding factors:

1.) Distribution:
Mass market – major retailer w/ increased potential volume of sales vs. speciality market – boutique stores w/ potential lesser volume of sales
Pertaining to start up companies: find out how many and which pieces of product, apparel, accessories, promotional materials/merchandise the client plans to produce for its initial and subsequent manufacturing runs.

2.) Type of medium/product:
Where will the finished design work appear? Print (Magazine, Newspaper Publications), Digital (Web, Email, Social Media) Outdoor (Signs/Signage, Billboards) or Multiple Forms of Media? How many mediums within each market category will the artwork appear? (for example, 1 magazine or 10? 1 billboard or 50?, etc… )

3.) Geographic area of use:
How widely will the work be used: local, regional, national, international? As the span of the marketplace increases, so does the work’s exposure, which can increase its present and future value.

4.) Duration of use:
How long will the design work be used – for one time, one year, two years? Limitations on duration of use allow designers to control the exposure of their work and to receive fair market value in each venue where their work appears.

Ownership of original art:
Giving the client the right to artwork or to a design for a specified use or a particular period of time is different from selling the client the physical artwork and submitting all electronic files. The sale of original art is considered a secondary market for graphic designers and is, by law, a transaction separate from the transfer or sale of the reproduction rights OR the original creative fee to initially design the artwork.

All-Inclusive rights “terms:”
Such licensing rights allows the client a one time run or use of the artwork, an unlimited use of the artwork, unlimited use of the reproduction of artwork, including geographic areas, all different types of media but for a limited period of time (usually 1 year), etc.. The rights pertaining to the licensing fee would be agreed by both parties in a legally binding licensing contract.

*the artist also has the right to require limitations on duration of use and separate different designs into different licenses allowing the designer more control to the exposure of their work and to receive fair market value in each venue where their work appears.

For example, the artist can “bundle” all-inclusive rights to client for all artwork EXCEPT for use of ads in publications (magazines and/or newspapers) and would limit the number of “runs” to 5 per year instead of an unlimited amount. Any more “runs” with the artist’s ad/ad campaign would require an additional licensing fee.

All-Rights Buyout:
Finally, there is an all-rights clause, also called a “buyout,” granting the client full permission for all copyrights of all original artwork including all original electronic files that the artist creates for that client. This type of transaction is always the most substantial and highest price point upon negotiation for the artist and client. The value for all original artwork is very difficult to gauge for fair market pricing since a buyout price is determined for the artwork for both present AND future value of the company. The all-rights buyout clause would be valid for the life of the client’s company and would be settled by a legally binding buyout contract.

Copyright Part One: The Definition of Protection for Creative Works

Intellectual property is a work or invention that is the result of creativity to which one has rights and which one may protect. A copyright is a way by law to protect a writing, for example, whether it is published or not. The U.S. Copyright Office designates copyright protection for “… original works of authorship fixed in any tangible medium of expression, now known or later developed…” (see 17 USC § 102(a)). Essentially there are three parts to the protection: (1) being a work of authorship, which we explore in more detail within a separate article, (2) being original, and (3) being fixed in a tangible medium of expression.

Original. A work must be original to the author in order to be protected. Further, the term “original” as used in copyright law simply means (i) that the work was independently created by the author and (ii) that it possesses at least a minimal degree of creativity. Feist Publications v. Rural Telephone Service is an illustrative case from 1991 in which Rural Telephone Service’s mere directory compilation deserved no copyright protection. The test is that an idea be more than “so mechanical or routine as to require no creativity whatsoever” – that the idea contain some “creative spark.” The court ruled that Rural Telephone Service’s directory was nothing more than an alphabetical list of all subscribers to its service, meaning no creative expression was involved.

Fixed. The fixed form does not have to be directly perceptible so long as it can be communicated with the aid of a machine or other device. For instance, a short story that is printed on paper meets this requirement, while a live performance of the same short story that is not being simultaneously recorded does not. Another example exists in a song. A song is considered fixed when it is written down on paper, which is the medium on which the song can be perceived, reproduced, and communicated. Further, as long as the work can be perceived by a machine, like the moment the author records it onto a cassette tape or compact disc, the song is fixed. Similarly, a computer program is fixed when stored on a computer’s hard drive. Further, even though bits and bytes are only temporarily fixed via the random access memory (RAM) of a computer, many courts have held that a computer program that exists in RAM is fixed for the purpose of copyright protection.

Are you trying to conduct preliminary research on whether or not you have a legal claim to raise before you consult an attorney?

Are you without legal representation at the moment?

Are you a student researching for a paper?

Copyright Part Two: Unprotected Works

The U.S. Copyright Office designates copyright protection for “… original works of authorship fixed in any tangible medium of expression… ” (see 17 USC § 102(a)). This begs the question: What is not protected? You learned from Part One of this series, a mere compilation of facts, like a telephone directory, is one type of work that is not protected. Here are five more areas of exclusion.

Implied Exclusions. Reading the language of the law implies that “works of authorship” be created. Therefore, works created by natural processes, like the patterns in fallen tree bark, are not protected. Further, the law implies that a human creates the work. Therefore, works created by non-humans, like a painting created by an artistic cat, are not protected.

Outright Exclusions. The U.S. Copyright Office has published Circular 34 that details a few items that are outside of copyright protection. Names, like your name or a school name or the name of store, are not protected by copyright. Titles, like the title of your novel, are not protected. Similarly, short phrases and expressions are excluded from copyright protection.

(Not So) Obvious Exclusions. An obvious exclusion from protection under copyright law is using someone else’s work within the work you create. In fact, per 17 USC § 103(a), “protection for a work employing pre-existing material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.”

What may be less obvious is that there is no protection whatsoever for federal government works – not even by individual federal governmental employees. Examples include court opinions, federal laws and regulations, administrative reports, official photographs, personal photos taken by a soldier in war, and a public official’s diary.

No Ideas. Ideas, like concepts, solutions, and building blocks, are not protected. If an idea can be expressed through only one or a few ways, to the extent that the idea constrains its expression, the expression is unprotected. For example, the following ideas are unprotected under copyright law:

  1. concepts, like a game show
  2. solutions, like rules for a game, and
  3. building blocks, like rhythms and notes in musical works or the plot and theme of a novel.

An idea, procedure, process, system, method of operation, concept, principle, or discovery may be protectable under patent law.

Too Useful. Functional items, like lamps, are not protected. 17 USC § 102(b) basically says that there is no protection if you can answer YES to either of the following:

  1. Does the work describe, explain, or illustrate something (like game rules)?
  2. Is the work embodied within the article (like a blank form)?

A lamp design, for example, is not protectable because its shape is not physically separate from its functional aspect. For details on what is protectable, see Part Three of this three-part series. If a pictorial, graphic, or sculptural work has no aesthetic features separate from its utilitarian aspects, then it is not protectable. Basically, if what you are trying to protect is designed to be useful (like the body of a costume that is really used as clothing), it will not get copyright protection.

Are you trying to conduct preliminary research on whether or not you have a legal claim to raise before you consult an attorney?

Are you without legal representation at the moment?

Are you a student researching for a paper?