Copyright is a legal right that gives the creator of a work an exclusive right to control how that work is used. Copyright only covers the tangible expression of an idea, not the idea itself, but copyright lasts a long time — until 70 years after you die, in most cases.
Under current U.S. law, you own a copyright in a work that you create at the moment it is created — the moment it is reduced to a tangible form (on a canvas, on a computer screen, or otherwise). But you also have the option of registering the copyright of your work with the U.S. government. Why would you do that, if you already have a copyright simply by virtue of creating something? There are two traditional answers.
First, even though you own the copyright as soon as you create a work, you can’t enforce, or act upon, that copyright unless it is registered. By “enforce,” I mean that you can’t ask a federal court to take any action to protect your copyright until it is registered. Copyright registration is the “key to the courthouse.” Getting a copyright registered takes several months, so if someone is infringing your copyright, you won’t want to wait for the registration process before taking action (or pay $800 extra to have registration expedited by the U.S. Copyright Office).
Second, registering your copyright permits you to obtain statutory damages. When you sue someone for copyright infringement, you can either ask the court for your actual damages (the economic harm that you have suffered because of the infringement), which you have to prove in court, or you can ask for statutory damages. Statutory damages are an amount chosen by the judge based on the nature of the “wrong” committed by the other person, but without considering the actual economic harm you have suffered. For an artist who isn’t licensing works for thousands of dollars, statutory damages will usually yield more money and will also be easier to deal with in court.
Statutory damages normally range from $750 to $30,000 per copyrighted work. The maximum amount can be increased to $150,000 per copyrighted work if the infringement was “willful.” The actual amount awarded is determined by a judge based on all the facts of a case.
The trick is that statutory damages are only available for copyright infringements that occur after a work is registered. This means that if you discover an infringement of your work, then run to register the work with the Copyright Office, you’ll have to seek actual damages instead of statutory damages.
Despite the traditional answers above, it’s very rare that you would go to court to enforce a copyright. But registering your copyright also creates proof of your ownership of a work and shows that you are aware of your legal rights and are willing to take steps to protect them. Referring to your registration number and including a copy of your copyright registration certificate can make a real impact if you are sending letters to people who have infringed your works. You are more likely to get a favorable settlement without ever going to court.
Registering your copyright also creates a public record that others can search to verify that you are the owner of a work, and it permits you to record copyright licenses or transfers of copyright to help maintain a record of important business transactions.
Registering copyright in your work is not difficult. You can set up a free electronic account at www.copyright.gov. You enter all the data for your copyright application via a web browser, pay a $35 government fee using a credit card, and upload an electronic copy of the work you are registering. In most cases, each work must be registered separately; but a set of photographs can be registered as a group, saving quite a bit on the $35 per-work fees.
The Copyright Office has many publications and help screens to explain the process, but if you’re not comfortable going the Do-It-Yourself route, a copyright lawyer can file your application for $250-$500, depending on the nature of the work. Your registration will be dated as of the date you file the application, but it takes 2-4 months to receive the actual certificate of registration in the mail.
Nicholas Wells, |1| an attorney and author, is the founder of Wells IP Law, a small Utah law firm with clients in more than 40 countries. During 2012 his series of copyright-related Hints ‘n’ Tips articles will alternate with John Hughes’ series on plein air painting. Upcoming subjects include:
- The difference between a trademark and a copyright (and knowing when you need both)
- Using a DMCA takedown notice to get rid of an online copyright violation
- The dangers of “work made for hire” issues in commissioned art projects
- Understanding “moral rights” in a contract
- Ending a previous license grant of your work through the Termination of Transfer provisions of the Copyright Act
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