The Copyright Process, Explained

A copyright is a form of intellectual property that protects original works of authorship when an individual or business has fixed the work in a tangible medium.

What Qualifies as an Original Work?

The types of work that may be considered an original work protected under copyright include photographs, paintings, videos, writings, music, sound recordings, motion pictures, software, and works of art.

The phrase “tangible medium” means that the work is in a concrete form. An example of this is a sound recording on a compact disc. The sound recording, the work, is “fixed” on the physical medium of the compact disc.

What Law Governs Copyrights?

The U.S. Constitution provides the foundation for copyright law in the U.S. Article I, section 8, clause 8 of the Constitution gives Congress the authority to enact laws 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 Copyright Act of 1976 further governs copyright protection. Under the law, copyright owners, also known as authors, have the exclusive rights to reproduce, adapt, distribute, publicly perform, or publicly display their work.

What Kind of Subject Matter May Be Copyrighted?

Literary work, performing arts, dramatic, musical works, artistic, visual arts, and architectural works all may be considered copyrighted work.

Not everything can be copyrighted, however: Ideas, procedures, processes, systems, concepts, names, titles, or short phrases are not protected by copyright law.

Both published works and unpublished works may be copyrighted.

Like other forms of intellectual property, copyright owners can license or sell their rights to others under copyright law.

What Does “Publication” Mean in Copyright Law?

The Copyright Act defines “publication” as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership.

Under the Copyright Act, the first publication of original works of authorship occurs when they are first made available to the public on an unrestricted basis.

Exceptions to Authorship

Under copyright law, there are some exceptions to the idea that the individual who created a work is its author. These include:

• If the work was created by an employee in the course of their employment. This is considered a “work made for hire,” in which the copyright is owned by the individual’s employer, who is considered the author under copyright law.
• If the work was commissioned by another individual. For this to apply, the individual commissioning the work must enter into a written work-made-for-hire agreement with the author, who is working as an independent contractor. Under statutory law, not all commissioned works may qualify as works made for hire.
• If the author sells the copyright to another individual or business. This is also known as “assigning” the copyright.

How Long Are Copyrights in Effect?

The amount of time copyright protection lasts depends on several factors, including when it was created, published, or registered and also on who authored the work.

For individual copyright owners who created works on or after Jan. 1, 1978, copyright protection begins at the creation of the work and lasts for 70 years after the author’s death.

For joint works – or works prepared by two or more people – protection lasts for 70 years after the last surviving author’s death.

For works by anonymous and pseudonymous authors, as well as works made for hire, protection is generally 95 years from when it was first published or 120 years from creation.

Copyright Prosecution

Unlike patents, which require an inventor to complete a patent application in order to obtain exclusive rights, under copyright law, simply authoring a work is enough to obtain the exclusive right to it.

Registering a copyright with the Copyright Office isn’t required, but it provides certain advantages to authors, particularly in court, should disputes about the copyright arise.

What Are he Benefits of Registering a Copyright?

There are several benefits to registering a copyright with the Copyright Office.

First, copyright registration sets out a public record of one’s claim to the copyright.

Second, in order to sue for infringement, a copyright must be registered. If an author registers their copyright within five years of its publication, it is considered evidence of the copyright’s validity.

Additionally, if a copyright is registered within three months of publication or prior to infringement, the copyright owner can seek statutory damages and attorneys’ fees in court.

Without such registration, the copyright owner may only seek actual damages and the profit made by the infringer. Hiring a lawyer for litigation can be costly. The potential to recoup attorney fees is a significant plus to taking part in the registration process.

Another benefit of copyright registration is that it allows the copyright owner to record the registration with the U.S. Customs Service to protect against imported infringing copies of the work.

The Copyright Application

The process of registering a copyright is relatively straightforward.

It starts with filling out a registration application and submitting it to the Copyright Office.

The copyright application captures basic information about a copyright claim: The work’s title, author, the name and address of the copyright claimant or owner of the copyright, the year it was created, whether the work was published or previously registered, and whether the work includes preexisting material.

Authors can submit multiple works at once during the application process.

Individuals can register through a paper application or register online through the electronic Copyright Office at copyright.gov.

Deposit Requirements

Once the application is prepared, applicants need to satisfy deposit requirements. This part of the copyright process is commonly misunderstood as a reference to filing fees, but it doesn’t have anything to do with money.

Instead, the deposit requirement refers to a copy of an applicant’s work that they submit to the Copyright Office.

This means that they must submit a copy of the work they wish to register to the Copyright Office. The form the copy takes depends on what’s required in the Copyright Act’s Section 408.

For certain types of works, such as three-dimensional works, applicants may be required to deposit identifying material, such as photos or photocopies, of the work.

To submit a deposit, the applicant will need to attach a shipping slip to each work they wish to file a copyright claim for.

Deposits are necessary for the Copyright Office to confirm copyrightable authorship, to verify one’s authorship, and to verify the information submitted in the application.

The Library of Congress may also select deposits for use in their collections.

Copyright Registration Fees

In addition to the application and deposit, in order to register their copyright, applicants need to pay filing fees for the application.

The filing fee may be based on a number of factors, including how you file (electronic filing versus paper application), as well as what kind of registration you are seeking (like registration of a claim in a group of unpublished works).

If you file electronically, you may be able to make a credit card payment or use a debit card to pay your filing fee.

The three elements of the completed application, fee payment, and a copy of the work are necessary before the Copyright Office can begin its review of the application.

Once the Copyright Office has registered a work, it assigns an effective date of registration to the work’s certificate of registration. That’s the date that the Copyright Office received all of the required application elements from the author.

Copyright registrations require an understanding of the law and various rules. A lawyer can significantly help an applicant navigate the finer points of the process and help them successfully obtain copyright registration.

Copyright Litigation

Disputes and litigation may arise when someone uses another’s copyrighted works without their permission. That is commonly referred to as infringement.

To prevail in a lawsuit, a copyright owner will need to show that they own a copyright and that another party has infringed it. The statute of limitations for copyright infringement lawsuits is three years after the date infringement occurred.

A copyright owner may be able to either obtain statutory damages or actual damages and the infringer’s profits, as well as attorneys’ fees if they prevail.

Copyright infringement cases are brought in federal courts.

How Lawyers Can Help With Copyright Protection

Whether you’re looking to start the copyright process or to enforce your copyrights, a lawyer can help. The following are examples of the services a copyright lawyer can provide:

• Providing advice on copyright matters
• Conducting audits to determine if there are any defects in the copyright and check for possible infringement of others’ rights
• Registering copyrights with the Copyright Office
• Drafting agreements
• Advising clients on acquiring copyrights
• Performing searches to ensure no one is infringing on a client’s copyright
• Licensing copyrighted work for others to use legally

Need Help With Copyright Protection?

The attorneys of AEON Law have significant experience with helping clients obtain copyright registration and protecting their copyrights in infringement litigation.

AEON Law provides counseling, copyright registration, agreements, acquisition, and litigation services to protect and enforce your copyrights.

Our clients range from software and technology companies to artists, songwriters, and chocolate makers. Our attorneys can assist with your copyright law needs, both domestic and abroad. We also offer a variety of other services to meet your comprehensive intellectual property needs.

Contact us today to learn more about our copyright services.