Copyright Registration Process and Limitations
by Gabrielle L. Walker of White & Lee LLP
The purpose of this memorandum is to provide a basic understanding of certain laws pertaining to copyrights generally and the registration of a copyright. The legal requirements summarized below are not intended to provide a complete analysis of any of the areas discussed. The Memorandum is offered primarily as a general guideline of the benefits of copyright protection and the registration process for a prospective applicant. Because the information is general in nature and not specific with respect to any factual situation, the following should not be relied on as legal advice to any particular recipient. The facts of any particular situation will affect the legal analysis.
A copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Copyright protection allows the owner of copyright the exclusive right to do and to authorize others to do the following:
(a) To reproduce the copyrighted work in copies;
(b) Prepare derivative works based upon the copyrighted work;
(c) To distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(d) To perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures, and other audio/visual work; and,
(e) To display the copyrighted work publicly.
It is illegal for anyone to violate any of the rights provided by the Copyright Act or the owner of a copyright. These rights, however, are not unlimited in scope. The Copyright Act establishes limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of "fair use," which allows the reproduction of copyrights for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. In other instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon obtainment of specified royalties and compliance with statutory conditions.
Copyright protection exists from the time the work is created in a fixed form. The copyright immediately becomes the property of the author who created it. Only the author or those deriving their rights through the author can rightfully claim a valid copyright.
In the case of works made for hire, the employer and not employee is presumptively considered the author. The copyright statute defines a "work made for hire" as:
(a) A work prepared by an employee within the scope of his or her employment; or
(b) A work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audio/visual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work will be considered a work made for hire.
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible, so long as it may be
communicated with the aid of a machine or device. Copyrightable works include the following categories:
(a) Literary works;
(b) Musical works, including any accompanying records;
(c) Dramatic works, including any accompanying music;
(d) Pantomimes and choreographic works;
(e) Pictorial, graphic, and sculptural works;
(f) Motion pictures and other audio/visual works;
(g) Sound recording; and
(h) Architectural work.
These categories should be viewed quite broadly. For example, computer software programs and most "compilations" are registrable as "literary works"; maps and architectural plans are registrable as "pictorial, graphic, and sculptural works."
Several categories of material generally are not eligible for statutory copyright protection. These include, among others:
(a) Works that have not been fixed in a tangible form of expression. For example:
- choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded.
- titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
- ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation or illustration.
(b) Works consisting entirely of information that is common property and containing no original authorship. For example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources.
No publication or registration or other action in the Copyright Office is required to secure copyright. Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phonorecord for the first time. "Copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. "Phonorecords" are material objects embodying fixations of sound (excluding motion picture soundtracks), such as cassette tapes, CD's, or LP's. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.
Although not required, publication is important to copyright owners. The Copyright Act defines publication as follows:
- Publication is the distribution of copies or phonorecords of a work to the public by sale or at the transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. Any public performance or display of a work does not of itself constitute publication.
Publication is an important concept in the copyright law for several reasons:
(a) When a work is published, it may bear notice of copyright to identify the year of publication and the name of the copyright owner and to inform the public that the work is protected by copyright. Works published before March 1, 1989, must bear the notice or risk loss of copyright protection.
(b) Works that are published in the United States are subject to mandatory deposit with the Library of Congress.
(c) Publication of a work can affect the limitations on the exclusive rights of the copyright owner.
(d) The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works and for works made for hire.
(e) Deposit requirements for registration of published works differ from those for registration of unpublished works.
For works first published on and after March 1, 1989, use of the copyright notice is optional, though highly recommended. Before March 1, 1989, the use of the notice was mandatory on all published works, and any first works published before that date must bear a notice or risk loss of copyright protection.
Use of the notice is recommended because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if the work carries a proper notice, the court will not allow a defendant to claim "innocent infringement". That is, that he or she did not realize that the work was protected.
The notice for visually perceptible copies should contain all of the following three elements:
(a) The symbol © or the word "COPYRIGHT," or the abbreviation "COPR."; and
(b) The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
(c) The name of the owner of the copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
EXAMPLE: © 1997 John Smith.
The copyright notice for phonorecords of sound recordings has somewhat different requirements. The notice appearing on phonorecords should contain the following three elements:
(a) The symbol (P); and
(b) The year of first publication of thesound recording; and
(c) The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer's name will be considered a part of the notice.
EXAMPLE: (P) 1997 ABC Corp.
The notice should be affixed to copies or phonorecords of the work in such a manner and location as to give reasonable notice of a claim of copyright. The three elements of the notice should ordinarily appear together on the copies or phonorecords.
To avoid to an inadvertent duplication without notice, the author or other owner of copyright may wish to place a copyright notice on any copies or phonorecords that leave his or her control. An appropriate notice for an unpublished work is: Unpublished Work © 1997 Jane Doe.
A work that is created on or after January 1, 1978, is automatically protected from the moment of its creation, and is ordinarily a term enduring for the author's life, plus an additional fifty (50) years after the author's death. In the case of a joint work prepared by two or more authors who did not work for hire, the term lasts for fifty (50) years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works, the duration of copyright will be seventy five (75) years from publication, or one hundred (100) years from creation, whichever is shorter.
Any or all of the exclusive rights, or any subdivision of the rights, of a copyright owner may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed. Transfer of a right on a non-exclusive basis does not require a written agreement. A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. Transfers of copyright are normally made by contract. Transfers of copyright ownership may be recorded with the Copyright Office. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties.
There is no such thing as an "international copyright" that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. Even though registration is not generally a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to seek registration. Among these advantages are the following:
(a) Registration establishes a public record of the copyright claim.
(b) Registration is a prerequisite of filing an infringement suit in court against an infringer.
(c) If made before or within five years of publication, registration will establish prime facie evidence in court of the validity of a copyright and of the facts stated in the Certificate of Registration.
(d) If registration is made within three months after publication of the work or prior to infringement of the work, statutory damages and attorneys' fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
(e) Copyright registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
The registration procedure itself is fairly straightforward. To register a work, the following three elements must be forwarded together to the Registrar of Copyrights in Washington, D.C.:
(a) A properly completed application form;
(b) A non-refundable filing fee of $20.00 for each application; and,
(c) A nonreturnable deposit of the work being registered.
The deposit requirements vary in particular situations. In some instances, only one copy is required for published works; in other instances, only identifying material is required; and in still other instances, special deposit requirements exist.
