Copyrights

What protection does copyright provide?

The Copyright Act of 1976 grants five specific rights to copyright owners:

• The right to reproduce. Only the copyright owner can reproduce or make copies of the work. So, no scanning your favorite novel and sending it to your friends, and no sampling the chorus of your favorite song to mix with your own music. (Unless you have permission from the copyright owner.)
• The right to prepare derivative works. Derivative works are those that are based on—or derived from—existing works. This includes translations, musical arrangements, fictionalizations, sound recordings, and more. So, if you want to translate a poem and publish that translation, you’d first need permission from the original poet (or whoever holds the copyright).
• The right to distribute. The copyright owner alone can make the work available to others by sale, rental, lease, or lending. But, after the first sale of a copy of the work, the copyright owner no longer controls what happens to that copy. For example, once an album is in the hands of a buyer, the buyer has the right to give his copy of the album away, resell it, lend it to friends, etc. The buyer does not have the right to reproduce or adapt the work for resell.
• The right to perform. The copyright owner controls when the work is performed publicly. A public setting, in this case, is essentially any location where anyone outside of a small family setting could presumably view the work. So, if you want to legally play Black Panther at a movie night in the park for your neighborhood, you’d need permission from MVL Film Finance, LLC, who holds the copyright.
• The right to display. The copyright owner controls when the work is displayed publicly. See “right to perform” for what’s considered a public setting.

Who owns a copyrighted work?

Copyright ownership can belong to a single creator, multiple creators, hiring party, or another party designated by the creator.

How can I search for copyright ownership information?

The U.S. Copyright Office maintains copyright information in an electronic public catalog. Currently, the catalog contains copyright information from 1978 to present. The catalog’s records include registrations, renewals, and recorded ownership transfers.

Prior to 1978, records were handwritten or typed (but not digitized). Though the office has a long-term goal of digitizing all copyright records, for now, pre-1978 records can only be viewed in person at the Copyright Office Reading Room in Washington D.C. You can also request the office to conduct a search for you, but that comes with a minimum $400 fee.

What is copyright notice?

Copyright notice informs the public that a work’s ownership is claimed, identifies the owner, and may make for smoother litigation in the case of infringement. A notice generally contains three elements: the copyright symbol © (or ℗ for phonorecords, aka sound recordings), the initial publication year, and the copyright owner’s name.

Copyright notice is not required for unpublished or foreign works. (Works published prior to March 1, 1989 follow a different set of rules, and notice is likely required.)

Can I use copyrighted work?

Only with permission. It’s up to copyright owners to determine if and how a work is used. If you use a copyrighted work without permission and without following the rules of use set forth by the owner, you’re entering infringement territory.

Is copyright registration mandatory?

Creative work does not necessarily have to be registered with the U.S. Copyright Office to receive copyright protection. Copyright is secured automatically when the work is created, and a work is created when it is fixed in a tangible form of expression. But, registration must be obtained before a copyright infringement lawsuit can be maintained in federal court.

How do I register a copyright?

You must submit a copyright registration application, pay all required fees, and submit (“deposit”) a nonreturnable copy of the original work to the U.S. Copyright Office. If the work is unpublished, or only published electronically or in audio format, the mandatory deposit requirement is usually satisfied when you submit an electronic copy of the work to the Copyright Office along with the registration application. If your work has already been published in a physical format, a physical deposit must be made. If your work has already been published, but only outside of the United States, certain special rules apply.

If you apply to register a copyright using the Electronic Copyright Office portal, the Standard Application will be sufficient for most works. From there, you will choose which type of work you’re registering, such as literary or visual.

If you apply with a paper form, note that there are different forms that correspond to the type of work you’re registering. Basic copyright registration forms exist for works that are literary, visual, single series, performing arts, and sound recording.

Below, we’ve outlined the information you’ll need to include on your application form. These sections may appear in a different order if you use the online portal.

• Title. Provide the title of the work. If the work is part of a larger collection, for example an article that appeared in a newspaper, you’ll need to provide information about the collective work, as well. You’ll also need to describe the type of work, such as “oil painting” or “photograph.” If the work has any alternative or previous titles that someone may search for, you’ll also need to list those.
• Author(s). You need to provide author information such as name, birthday, death year (if applicable), nationality or domicile, whether the work was “made for hire,” and nature of authorship (sculpture, artwork, photograph, etc.). If there are multiple authors, complete these steps for each.
• Creation and Publication. The year the work was completed needs to be listed, as does the date of first publication (if applicable).
• Claimant(s). The claimant is either the author of the work or a person/organization to whom the author has transferred ownership. Name and address are required. Note that if the claimant is not the author, a brief statement detailing the transfer of ownership is required. For example, if a contract secured the transfer, you might write “By written contract.”
• Previous Registration. This section is called “Limitation of Claim” on the online form. If the work has not been registered before, check “No.” If it has previously been registered, check “Yes,” then check the box that indicates why registration is being sought again. Your options are: a) This is the first published edition of the work; b) This is the first application submitted with this author as claimant; or c) This is a changed version of the work. You’ll also need to provide the previous registration number.
• Rights and Permissions. Online only. Who should be contacted to inquire about using the copyrighted work? Provide name and contact information here. This information will be accessible to the public.
• Derivative Work or Compilation. Complete this section if the work is derivative (based off of existing work) or a compilation (uses pieces of existing works to create a new, original whole). You’ll need to identify any preexisting works that were used, as well as include a statement about any original material that’s been added.
• Correspondence. Provide the name and contact information for the person who should be contacted with any questions about the application.
• Special Handling. Online only. This section allows you to choose expedited service. Expedited service is only granted if you meet certain requirements, such as pending litigation or a publication deadline. The fee to expedite is a whopping $800.
• Certification. A signature is required from the author or other copyright claimant, the owner of exclusive right(s), or an authorized agent.
• Address for Return of Certificate. Provide the name and address where the copyright certificate should be sent to.
• Fees. If submitting by mail, include the appropriate fees in the form of a check or money order made out to U.S. Copyright Office. If submitting online, you’ll be prompted to pay by card.

Once you’re through these steps and have paid your fees in the online portal, you’ll be directed to a screen where you can upload copies of your work. If you need to submit your work by mail, click “Creating Shipping Slip” on the bottom of the screen, print it off, and use it to mail your work to the address listed.

How can I submit my copyright registration application?

In some cases, you can submit a copyright registration application by mail or online. However, certain applications must be submitted via one medium or the other. For example, applications to register both unpublished and published photographs must be submitted online. The same is true for serials, newsletters, newspapers, and unpublished works, among others.

In rare instances, you must file by mail, such as if you’re renewing copyright claims or are registering vessel designs.

How much does copyright registration cost?

The standard fee for submitting an electronic copyright registration application is $65. However, the fee drops to $45 if you register just one work, are the only author and claimant, and created the work for yourself (as opposed to for hire).

If you file a paper application, the standard fee jumps to $125.

How long does copyright registration take?

If no correspondence with the U.S. Copyright Office is needed to discuss your registration, it should be completed in 1-4 months. If correspondence is needed, registration could take up to 8 months.

What is copyright infringement?

Copyright infringement happens when a work has been “reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner,” per the USPTO.

What if someone infringes on my copyright?

If you believe that your copyright has been infringed and you anticipate a legal dispute, if you have not yet done so, you should immediately apply to register your copyright with the U.S. Copyright Office in order to secure the opportunity for valuable remedies and litigation advantages available for timely registration under the Copyright Act. Registration (or an attempt to register, but denial from the Copyright Office) before or within certain time frames of publication of the work may provide certain remedies not otherwise available without timely registration. If you have not registered (or attempted to register) your copyright, you will not be allowed to maintain a federal lawsuit for copyright infringement.

Copyright infringement cases often begin with a cease-and-desist letter. While these letters vary based on individual circumstances, their overall purpose is to point out the infringement(s), demand that action(s) be taken to stop infringing, and threaten legal action should the infringement continue.

If you are unable to reach an agreement with the infringer, or determine to proceed directly to legal action without attempting to reach such an agreement, and you have registered or attempted to register your work, you may file a lawsuit in the federal courts.

If the court rules in your favor, as the plaintiff (the infringed-upon party), you may be awarded monetary damages.

What is fair use?

Fair use is a legal doctrine that promotes freedom of expression by permitting certain unlicensed uses of copyrighted works in certain situations. It is a common defense in copyright infringement cases. Use of a copyrighted work is considered “fair” (meaning, permissible) if such use is for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, and the use consists of only an excerpt or portion of the whole work – i.e. only the portion of the whole work to which the criticism, comment, etc is directed. There are four factors to be considered when determining whether the use made of a work is a “fair use”:

• Purpose and character of the use. Is the work used for commercial or noncommercial reasons? If the work is used for a noncommercial purpose (i.e. in an educational setting) it may be legally safer than a work used for a commercial purpose (i.e. in an advertisement). When it comes to “character,” a transformative use of a copyrighted work is more likely to be considered fair, as it adds something to the work that renders it new.
• Nature of the copyrighted work. Is the copyrighted work more creative (novel, movie, song, dance) or more factual (news or scientific report)? If it’s a more creative work, chances are a claim of fair use will be harder to substantiate. The same goes for unpublished work: a fair use claim will be tough, as the creator didn’t control the work’s initial placement.
• Amount and substantiality of the portion used in relation to the work as a whole. How much of the work is used, and what part or portion of the work was used? If the use was only of a small portion of the entire work, this is usually more fair than if a large portion is used. However, even if only a small amount of a work is used, if the portion used is the work’s essence, or the “heart” of the work, this may not be considered fair.
• Effect of the use upon the copyrighted work’s value/potential market. Does a work’s unlicensed use harm the existing or future market for the copyright owner’s original work? If so, the use may be unfair.

Though the above factors play a large part in determining the outcome of copyright infringement cases, other factors come into play as well. Copyright cases vary widely, and there is no simple equation that can tell you whether a specific use is fair or not.

Are copyright infringement laws really enforced?

Yes. That said, how rigorously copyright infringement rights are defended depends on the copyright owner. While some may have a more laid back enforcement approach, others will go to great lengths to protect their creative work.