FAQ: Copyrights

Gunn, Lee & Cave, P.C. intellectual property attorneys have extensive experience in copyright law and can help answer any questions you have about registering a copyright, filing a copyright lawsuit, and general questions about copyright law. We would enjoy the opportunity to register your work for you and look forward to working with anyone seeking copyright protection. In light of the possible consequences that erroneous registration could cost you, coming to Gunn, Lee & Cave for your copyright needs is the wise choice.

What is a copyright?

A copyright is the manner in which someone protects an original work of authorship that has been fixed into a tangible medium of expression. An original work of authorship can be many things. For example, an original work of art, an original manuscript or screenplay, the contents of a web page, a book, the compilation of individual works of authorship into a greater work (like making a compilation chapters written by different authors into a book), designs and drawing, computer programs, as well as numerous other original works of authorship.

How do I obtain copyright protection?

By common law, once an author actually fixes the original work of authorship in the tangible medium of expression copyright protection attaches without doing anything more. However, before your common law rights can be enforced your common law copyright will have to be federally registered with the United States Copyright Office.

Waiting until someone infringes your copyright to obtain a federal registration can prevent you from being awarded any meaningful monetary damages in litigation and oftentimes enforcing your rights under a common law copyright simply becomes uneconomical.

In a litigation context, federal registration is the best way to ensure that if your copyright is infringed you can enforce your rights through monetary remedies. In this regard, federal registration should allow you to recover statutory damages and possibly the costs of a copyright infringement lawsuit, including attorneys' fees; however, you must obtain the federal registration within a certain period of time for these remedies to apply. Consequently, you should consult with an attorney as soon as practicable, and possibly even before you finish your work.

For more about the benefits of federal registration, see the question that addresses those benefits.

What are the benefits of federal registration for my original work of authorship?

If you have created an original work of authorship that is fixed in a tangible medium of expression, the best way to protect your work is federal copyright registration. Failing to register your original work within the proper time period will preclude you from obtaining statutory damage and you will have to prove actual damages. Actual damages are those damages that you have actually suffered and they must be proven to a court before you can recover.

Actual damages are often difficult to prove. Think about it. If someone stole your original work of authorship, how do you quantify the amount of harm you have actually suffered in terms of money? While you may feel that a great deal of money is deserved, courts simply disagree. In fact, actual damages are so difficult to prove that many courts have awarded authors who failed to register their original work a mere $1 to show that the work was infringed. While this nominal amount of damages may show that a court truly thinks you created the work first, it is probably not adequate compensation in your mind. Furthermore, this nominal amount will leave you stuck with costly attorneys' fees that you incurred trying to protect your rights.

Although in limited situation actual damages can be proved, properly registering your copyright with the copyright office is the best way an author can ensure he/she will avoid having to prove actual damages. Registering your copyright gives you the opportunity to recover statutory damages, or $750–$30,000 per work that is infringed. In addition, if it can be proven that the infringer was willfully infringing your copyright, statutory damages can be as high as $150,000 per work. Furthermore, registering your work can allow you to make the infringer pay for all the court cost and attorneys fees you incurred by prosecuting your copyright in a court.

In light of the penalties for not registering your work, there really should not be any question about the proper course of action an author should take. While deciding to not register your copyright may save you a little money in the beginning, the decision could end up costing you in the long run!

Why do the U.S. Copyright Laws put such an emphasis on registration?

Constructive notice. By registering your work with the U.S. Copyright Office others are put on constructive notice that you are claiming copyright to a particular work of authorship. This constructive notice precludes potential infringers from claiming that they innocently infringed your original work. In other words, if your work is registered these potential infringers cannot copy your work and then later claim that they did not know the author of the work they copied was claiming a copyright. Because innocent infringement is an affirmative defense, if a potential infringer can prove to a court that he/she truly did not know an author was claiming a copyright, the potential infringer may escape liability for copying that author's work.

Many times, if a work is not registered a claim of innocent infringement amounts to a "he said, she said" battle. That is, the potential infringer claims he/she did not know the author was claiming a copyright, while the author claims he/she did. Meanwhile, neither side has any real proof of either claim. Thus, the Copyright Laws provide for stiff penalties (i.e., the preclusion of statutory damages) to encourage registration and help avoid the "he said, she said" scenarios.

How do I get my original work of authorship federally registered?

The proper steps to register your work of authorship depend on the nature of the work itself. To register your work, the proper forms have to be filled out, the proper fees have to be paid, and a specimen of the work has to be submitted to the Copyright Office. The specific form required depends on the nature of your work and can be tricky to determine on your own. Many times people register their work using the incorrect form, a mistake that can be costly. These forms eventually become your certificate of registration and are meant to put other people on notice that you are claiming a copyright in a certain work of authorship. If you use the wrong form or make a mistake on the correct form, your entire protection may be sacrificed at the most critical time when you need it—during litigation!

Defendants usually try to invalidate copyrights registrations during the litigation process. Because copyright registration applications are not scrutinized like patent and trademark applications, mistakes such as using the wrong form or entering the wrong information on the correct form are more likely to go unnoticed by the "copyright examiner." Instead, an opposing party in litigation—typically a party you have sued to protect your rights under the registration—is the one who points out these mistakes to invalidate the copyright registration. Of course, if your registration is invalidated then the protection you thought you had in place does not exist and you will have to take other measures to protect your rights at that time, if any protective measures are still available. As a result, people who try to register copyrights without the experience of an attorney who practices in the field of intellectual property are taking a substantial risk.

At Gunn, Lee & Cave, our attorneys have extensive copyright experience and can help answer any questions you have. We would enjoy the opportunity to register your work for you and look forward to working with any author seeking copyright protection. In light of the possible consequences that erroneous registration could cost you, coming to Gunn, Lee & Cave for your copyright needs is the wise choice.

For more on the possible consequences of incorrectly registering your work, see the question that addresses the benefits of federal registration.

What is a "Poor Man's Copyright"?

A Poor Man's Copyright is a term used to describe a manner in which authors try to obtain copyright protection without going through the registration requirements for the United States Copyright Office and is commonly misperceived as a valid protection for an original work of authorship. In an effort to avoid the formal requirements of copyright registration, authors mail themselves a copy of their original work of authorship from the U.S. Post Office. Once the package arrives the author does not open it, but rather retains the package for later proof that the original work was created on a certain date. Because the package is unopened, these authors think that in a court or some other tribunal they can prove they actually created the work prior to another person claiming copyright on the same work.

While a Poor Man's Copyright may be used as evidence to establish a date of first creation, this method of copyright protection is not nearly as beneficial as a registered copyright. In the first place, federal registration is required before an author can bring suit. Whether an author is claiming common law copyright protection or has "filed" a Poor Man's Copyright by mailing the work to himself/herself, the author will have to register the work before a suit to enforce the copyright can be instituted. Thus, the author will have to undergo the fees and procedure that the author originally sought to avoid. More importantly, by failing to register the work the author may have precluded himself/herself from obtaining statutory damages and a suit to enforce the copyright would likely be too uneconomical to maintain.

For more information about the possible harmful effects of a Poor Man's Copyright, see the question that addresses the benefits of registration.

How long does copyright protection last?

Although there is a definite answer to this question, that answer depends on when the original work of authorship was created, whether the author is an individual or an employer, and when the work was first published, if it has been published at all. The reason there is no single, consistent term for protection is that the Federal Copyright statutes have been amended many times throughout the years and the specific copyright law that was in effect at the time the work was created and/or published governs the duration of protection.

As a result of the differing copyright laws, before we can give you a definite answer as to how long your work of authorship will be protected under a copyright we will have to know more facts about the work in question. At Gunn, Lee & Cave, our attorneys have the experience and knowledge required to ask the right questions and give you answers to questions such as this. Setting up an initial meeting with one of our attorneys is the first step to getting the specific information you want. Give us a call and we will be happy to schedule a meeting.

Record companies have sued me for copyright infringement concerning peer-to-peer networks. What do I do?

Peer-to-peer networks ("P2P networks") are file-sharing networks that allow users to distribute computer files among other users on the P2P network. The computer files that are distributed can be anything from a recipe you typed into in a word processing program to picture of your kids that you saved on your computer from your digital camera. P2P networks give its users the ability to transfer these computer files from one P2P user to another over the internet. Although these programs do have some legitimate uses, they are predominately used to share computer files such as copyrighted songs and movies. Distributing these songs and movies are a violation of the copyright owners' rights.

In September 2003, record companies started a nationwide campaign to enforce the copyrights on songs that they own. While the record companies did not actually create the works they are suing on, the copyrights to these songs have been transferred to record companies and the companies now retain the right to sue. Under the record companies' litigation campaign the companies seek out potential infringers by tracking the names of internet account holders. That is, the record companies determine which internet account is distributing the copyrighted works they own. As a result, if your name is the one listed on the bill for your Internet services, you are the one that gets sued. It makes no difference to the record companies whether you are the person who actually distributed their works. It may be your kids, their friends, a burglar that broke into your house, or someone who is stealing and using your internet account!

While the litigation campaign started by record companies is controversial and the ethics can be debated, to a person receiving the lawsuit, a solution has to be found. At Gunn, Lee & Cave, we can defend you against this type of debatable litigation. The first step is to call us and schedule a meeting. What particular strategy we pursue will depend on the specific facts of your case. We should be able to tell you in an initial consultation whether your case is worth fighting or if you should simply settle with the record companies. Let us know; we would be happy to help.

Can I reproduce a copyrighted work and give credit to the author without fear of infringing the author's copyright?

Unfortunately, there is no clear answer to this question. The simple answer is that whether this practice rises to the level of infringement depends on the facts of each case. In copyright law the doctrine of fair use could apply to this situation. Fair use itself is not a clearly defined doctrine within copyright law, but generally if a court finds that such a practice was "fair" then you can do so. However, predicting what a court may consider fair is a risky proposition. The better practice is to obtain the author's explicit permission to use the work and construct a license agreement that outlines your allowable uses.

At Gunn, Lee & Cave, our attorneys have the knowledge and experience to craft license agreements that will protect you and your use. Of course, we will have to obtain the author's permission before any actual use can occur, but if the author is willing we can represent you in license negotiations.

The © symbol is one way of putting others on notice that an author is claiming copyright on an original work of authorship. The © notice symbol helps prevent potential infringers from claiming that their infringement of a copyrighted work was "innocent". Innocent infringement is one way that potential infringers can limit their financial liability for infringing a copyrighted work. If an infringer can prove that his/her infringement was indeed innocent, monetary damages from a copyright infringement lawsuit may be reduced significantly.

What is the public domain?

The public domain is the term used in copyright law to signify that a work belongs to the public. When an original work of authorship is first created (i.e., fixed in a tangible medium of expression) the copyright of the work generally belongs to the author automatically. However, at some point in time the work will eventually pass into the public domain. There are several ways a work can pass into the public domain. If an author publishes the work without claiming copyright protection or clearly assents to the work passing to the public domain, the public essentially becomes the owner of the copyright. Additionally, if the term of a copyright has expired the work will also pass into the public domain.

A work passing into the public domain is an affirmative defense under the broader doctrine of fair use. If someone is accused of infringing a work, this person may be able to assert the fact that a work is in the public domain as a defense to the infringement. Nonetheless, the person accused of infringing will have to go through the litigation process before being exonerated. Rather than relying on a work being in the public domain as the basis for copying it, the better practice is to consult with an attorney before use.