June 22, 2011
By Rachel Young Fields, published on June 22, 2011, in Business in Savannah.
Although it is true that a copyright is formed at the moment of creation, enforcing that right is impossible without a valid copyright registration from the U.S. Copyright Office.
A copyright is a form of protection for original works of authorship, including literary, dramatic, musical and artistic works; a copyright does not protect ideas, concepts, systems, or methods. Books, songs, paintings, sculptures, and plays, for example, can all be copyrighted. This grant of protection originates in the U.S. Constitution and is outlined by the Copyright Act.
Copyright law provides authors of original works exclusive rights to use their works, including the right to reproduce, distribute, perform and display the protected work. As a general proposition, it is illegal for others to violate the copyright holder’s exclusive right to use their original work. Anyone violating those exclusive copyrights can be held liable for copyright infringement and future infringement can be enjoined.
Copyright law protects an original work at the moment it is created and fixed in a tangible medium of expression. This is an often encountered and true statement of the law on the creation of copyrights. However, this legal notion creates a great deal of confusion about a person’s ability to enforce their copyrights.
In fact, many people believe that by placing the original work in an envelope and mailing it to themselves, often called a “poor man’s copyright,” that they have protected their copyright and can enforce their exclusive rights in their work. This is a common misconception.
Two separate requirements must be considered under Copyright law: fixation and registration. Fixation transforms an unprotectable idea into a protectable work. The poor man’s copyright most likely originated as a mechanism to demonstrate fixation; to show that the author transformed their idea into a copyrighted work by the postmark date on the envelope. Although such evidence of fixation may not be entirely worthless, it is not a substitute for a registration.
The Copyright Act explicitly states that in order to bring suit for copyright infringement, you must have a validly registered copyright with the U.S. Copyright Office. Therefore, in order to enforce a copyright, including preventing others from reproducing an original work or suing for damages for past unauthorized use, the author must have registered the work.
Registering a copyright can be a relatively simple process depending on the original work. As a practical matter, an author or artist should always register their original works with the U.S. Copyright Office. Otherwise, the artist or author may find themselves in the unfortunate position of having no mechanism to stop others from infringing their rights.
Additionally, a copyright holder derives numerous other benefits from registering an original work besides the right to bring suit for infringement, including the availability of statutory damages, public notice to others of the claimed copyright, and certain presumptions about the validity of the copyright.
Consider consulting a copyright attorney if you are unsure how to register your copyright or if your work may be entitled to copyright protection.
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Rachel Young Fields is an associate at HunterMaclean who practices in the areas of business litigation and intellectual property. She can be reached at rfields@huntermaclean.com or 912-236-0261.
