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Copyrights 101: Reviewing the rules of protecting original works

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Copyright

A copyright is a type of intellectual property which protects original artistic or literary works that are fixed in a tangible medium of expression, meaning that the work is sufficiently permanent to last for more than a transitory period of time (17 U.S.C. §101). A copyright protects books, photos, music, fine art, videos, films, recordings, and architecture, for example. A copyright does not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries because these matters are not fixed in a tangible medium of expression as required under the statute.

A copyright lasts for the life of the author plus 70 years. For works created by two or more authors, the copyright exists for 70 years after the death of the last surviving author. For works for hire, anonymous works, and pseudonymous works, the copyright exists for 95 years from the date of the first publication or 120 years from the date of creation, whichever is shorter. For anonymous and pseudonymous works, if the author’s identity later becomes known, the copyright lasts for 70 years after the death of the now-known author. Upon expiration, the copyright enters into the public domain.

A copyright is not a trademark, nor is it a patent. A trademark / service mark gets registered with the United States Patent & Trademark Office (USPTO) and protects any word, phrase, symbol, slogan, and/or design that identifies and distinguishes the source of the goods and/or services of one owner from the goods and/or services of others in the same industry. Federally-registered trademarks last for 10-year renewable increments. A patent gets registered with the USPTO and protects inventions and ornamental designs like prototypes and technologies. Utility and plant patents last 20 years from the date of filing the application, and design patents last for 14 or 15 years depending on whether the application was filed before, on, or after May 13, 2015.

From the moment that works are created and fixed in a tangible medium of expression, a copyright exists on the work. Registration is a wholly voluntary form of protection that allows the owner to have the exclusive right under Section 106 of Title 17 to reproduce, prepare a derivative, distribute copies, and publicly perform and display the work. In addition, a certificate of registration allows the registrant to obtain monetary damages and attorney’s fees if successful in litigation.

Registering a copyright and protecting it from infringement

A copyright gets registered with the U.S. Copyright Office. For a single author and sole claimant of the copyright application, the cost is $35 to register a single work that is not a work for hire, All other basic filings cost $55.

An owner officially protects a copyright by registering it with the Copyright Office. The applicant must log into the Electronic Copyright Office (eCO) registration system and file an appropriate application. A standard  application for copyright protection is suitable for original works, derivative works, collective works, and compilations, but is not suitable for registration of a group of serials, newspapers, newsletters, contributions published in a periodical, or photographs. Subsequently, works that are groups of updates to a non-photographic database, renewal registration, foreign works that have been restored to copyright protection, mask works, and vessel designs require a paper application. Once the applicant pays the required fees using credit card or electronic check, the applicant must either upload the work (if contained in an acceptable electronic file type and criteria are met) or mail-in a copy of the work (with the shipping slip) as long as all other criteria are satisfied.

Under the Artists’ Rights and Theft Prevention Act of 2005, certain un-published works may be pre-registered with the Copyright Office. Pre-registration is not the necessary route for most works, and does not serve as a substitute for registration of the work. Instead, pre-registration preserves a period of time in which to follow up with registration. It also makes it possible for the applicant to bring an infringement action and recover statutory damages and attorney fees prior to the work being commercially distributed and fully registered. Pre-registration of a copyright is a 3-step process.

First, the applicant must complete the online-only application (available for unpublished works, works being prepared for commercial distribution [physical or digital format], and works that have a history of infringement) via the applicant portal and pay the $140 non-refundable fee. The applicant is not required at this time to submit a copy of the work or any finished part of the work with the application.

Second, the applicant may only pre-register eligible works which include motion pictures, sound recordings, musical compositions, literary works being prepared for publication in book form, computer programs (including video games), and advertising or marketing photographs.

Third, the applicant must complete the pre-registration application by selecting the type of work, and providing additional information (ex. Title; author(s); claimant / owner of copyright when follow-up registration is made; dates on which creation began, date of anticipated completion and date of anticipated commencement of commercial distribution; description of the work (in less than 2,000 characters; email address and name of individual certifying the statement; payment of fee via a deposit account, credit card, debit card, or electronic funds transfer via Pay.gov and the U.S. Treasury site).

Finally, the applicant should bear in mind the statutory provisions and definitions when completing an application (ex. Copyright does not extend to ideas and the various requirements for pseudonymous works, publication, and works for hire).

A registration submitted online will receive an email confirmation of completed application steps. An applicant who submits a registration via email may not get a confirmation that the registration has been received by the Copyright Office; however, commercial carriers (ex. FedEx and UPS) may be able to indicate that the Copyright Office is in receipt of a mailed-in application. Remember that records at the Copyright Office are available as a public record. The post-application timeline for completing a copyright registration varies from one work to another and is dependent on a number of factors. Web claims with or without correspondence to the applicant from the Copyright Office can be processed between 3 and 16 months, with an average processing time of 7 to 9 months. Mail claims with or without correspondence to the applicant from the Copyright Office can be processed between 2 and 28 months, with an average processing time of 9 to 16 months.

To protect against copyright infringement (the violation of the copyright owner’s exclusive rights), it is the copyright registrant’s responsibility to enforce his/her respective copyright. The Copyright Office does not serve as an enforcement mechanism, but provides a number of professional resources for enforcement assistance, including the Federal Bureau of Investigation’s (FBI) Cyber Division and Financial Institution Fraud Unit, your local FBI office, the Internet Crime Complaint Center, FBI Tips and Public Leads, and the Computer Crime and Intellectual Property Section (CCIPS) of the Criminal Division of the U.S. Department of Justice, among many others. A copyright owner may (under Chapter 5 of Title 17) also seek an injunction; impound and dispose of infringing articles; and recover damages, profits, costs, and attorney’s fees. However, if copyrighted material is copied for a limited and transformative purpose, it will be considered fair use.

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Heather Bowen Heather Bowen is an intellectual property and licensing counsel in New York. She has protected intellectual property and licensing portfolios, negotiated and reviewed domestic licensing agreements, and strategically counseled internal legal, finance, sales, and marketing teams. She has continued to stay abreast of developments in intellectual property law through publications as well as her effective leadership and involvement in committees of the American Bar Association, the Hispanic National Bar Association, the International Trademark Association, and the New York Intellectual Property Law Association.