Many people seem to think that putting a copyright notice on their work protects their rights. They are only partly right. Registering the copyright is an important step. If you register your copyright before an infringement occurs, you have a great deal more leverage in enforcing your rights.
Question: What does Copyright Law protect?
Copyright Law protects original works of authorship, including artistic and literary works for the life of the creator plus 70 years. This means that the copyright owner has the exclusive right to license, reproduce, perform, and display the work (subject to the “fair use?doctrine discussed below).
Question: Is the Copyright ?notice required?
The copyright notice is not required. Legally, the creator owns the copyright to his/her works, and those rights attach automatically when the work is reduced to a tangible medium (e.g., put on paper). So, you don’t have to use copyright notice to have legal rights. Still, it is a good business practice to use the copyright notice (?Date, your name, and I also recommend including contact info) routinely because it puts people on notice that you claim ownership of the copyright.
Question: What are the benefits of Copyright Registration?
To enforce your rights, you need to register your copyright. Registered works are on the “public record?and have a certificate of registration. Most importantly, registered works are eligible for statutory damages and attorney's fees in the event of infringement.
For example, if you discovered that someone had copied your software program, training materials or other creative work, and was using it without paying the licensing fee, you would want to stop the unauthorized use and collect damages.
When you call an intellectual property lawyer about enforcing your copyright, the first question will be: “Have you registered the copyright??br />
If no, you have little leverage to negotiate a settlement. You have to hurry up and register the copyright (expedited registration is expensive and delays your enforcement efforts). Further, you will have to prove actual damages, actual lost revenues, which is extremely difficult.
If yes, you have leverage because of the statutory damages provision of the Copyright Act, which provides for damages of “not less than $750 or more than $30,000?per infringement. If the court finds that the infringer’s behavior was "willful,?the court has discretion "to increase the award of statutory damages to a sum of not more than $150,000" per infringement. You may also recover attorney fees.
Question: How do I register my copyright?
To register a work, go to the web site for the Library of Congress (www.loc.gov) and click on the Copyright Office. You’ll find a wealth of information with forms and filing instructions. You will need to submit the appropriate application form for the type of work being registered: such as Form TX for literary works including computer programs, Form VA for pictorial material, Form PA for audiovisual works. You must also pay a nonrefundable filing fee of $30, and include a “deposit?which can be a copy of the entire work, a print out, audio cassettes, videotape or computer disk, depending on the type of the work to be registered.
Question: Where can I get forms to register a copyright?
Forms may be downloaded from the Library of Congress web site. You may also get forms from the Copyright Office in person, by mailing in a request, or by calling the forms hotline: (202) 707-9100. Most public libraries can help you download the forms.
Question: What is the “Fair Use?Doctrine?
The rights of the copyright owner are limited by the “fair use?doctrine, which allows reproduction of copyright protected materials under certain circumstances. Unfortunately, there are no clear-cut rules for what is “fair use.? There are no “safe harbors?such as a specific number of words or percentage of content.
Rather, there are factors that are used to determine “fair use:?br />
(1) Purpose and character of the use.
Is the use commercial or non-profit? Commercial use is less likely to be “fair use.?“Fair use?is more likely when the use is to illustrate, comment, criticize, or educate.
(2) Nature of the copyright work.
Is the work factual or fictional? Factual use is more likely to be “fair use.?br />
(3) Amount and substantiality of the portion of the work used.
The courts have found that using 300 words of a 30,000-word manuscript of President Ford’s memoirs was the “heart of the book?and contributed to the conclusion that it was not “fair use.?br />
(4) Effect on the potential market value of the copyrighted work.
Will your use diminish the potential revenue for the copyright owner? If there’s financial harm (loss of revenue to the copyright owner), then it’s probably not “fair use.?br />
Question: Are there “fair use?guidelines?
While there are no firm rules, the following guidelines may help in evaluating whether your use is within the “fair use?doctrine.
1. Quote accurately and briefly.
(Word-count guidelines - such as 250 words or less - are not a safe harbor).
2. Commercial use is less likely to be “fair use.?br />
3. Fictional works receive more protection than factual works.
4. “Fair use?includes activities such as criticism, comment, news reporting, teaching and research.
In conclusion, it’s a good business practice to register your copyrights. Registering a copyright is inexpensive and provides strong leverage in obtaining compensation in the event of infringement (unauthorized, uncompensated use, outside the fair use doctrine). If you wait until an infringement occurs, it’s too late.
Jean Sifleet is a practical and experienced business attorney whose career spans many years in large multi-national corporations and includes three successful entrepreneurial ventures. Jean has extensive experience in dealing with intellectual property matters in the large and small companies and as a small business owner. She has authored numerous books and publications on avoiding legal pitfalls in doing business. This article is excerpted from her new book, Advantage IP ?Profit from Your Great Ideas (Infinity 2005). For more information, Jean's website is http://www.smartfast.com.