Many people seem to think that putting a copyright notice
on their work protects their rights. They are only partly right.
Registering the copyright is an important step. If you register
your copyright before an infringement occurs, you have a great
deal more leverage in enforcing your rights.
Question: What does Copyright Law protect?
Copyright Law protects original works of
authorship, including artistic and literary works for the life
of the creator plus 70 years. This means that the copyright
owner has the exclusive right to license, reproduce, perform,
and display the work (subject to the “fair use” doctrine
discussed below).
Question: Is the Copyright © notice
required?
The copyright notice is not required.
Legally, the creator owns the copyright to his/her works,
and those rights attach automatically when the work is reduced
to a tangible medium (e.g., put on paper). So, you don’t have to use copyright
notice to have legal rights. Still, it is a good business
practice to use the copyright notice (© Date, your name,
and I also recommend including contact info) routinely because
it puts people on notice that you claim ownership of the
copyright.
Question: What are the benefits of Copyright Registration?
To enforce your rights, you need to register
your copyright. Registered works are on the “public record” and
have a certificate of registration. Most importantly, registered
works are eligible for statutory damages and attorney's fees
in the event of infringement.
For example, if you discovered that someone had copied your
software program, training materials or other creative work,
and was using it without paying the licensing fee, you would
want to stop the unauthorized use and collect damages.
When you call an intellectual property
lawyer about enforcing your copyright, the first question
will be: “Have you
registered the copyright?”
If no, you have little leverage to negotiate a settlement.
You have to hurry up and register the copyright (expedited
registration is expensive and delays your enforcement efforts).
Further, you will have to prove actual damages, actual lost
revenues, which is extremely difficult.
If yes, you have leverage because of the
statutory damages provision of the Copyright Act, which provides
for damages of “not less than $750 or more than $30,000” per
infringement. If the court finds that the infringer’s
behavior was "willful,” the court has discretion "to
increase the award of statutory damages to a sum of not more
than $150,000" per infringement. You may also recover
attorney fees.
Question: How do I register my copyright?
To register a work, go to the web site for
the Library of Congress (www.copyright.gov). You’ll find a wealth of information
with forms and filing instructions. You will need to submit
the appropriate application form for the type of work being
registered: such as Form TX for literary works including
computer programs, Form VA for pictorial material, Form PA
for audiovisual works. You must also pay a nonrefundable
filing fee of $30, and include a “deposit” which
can be a copy of the entire work, a print out, audio cassettes,
videotape or computer disk, depending on the type of the
work to be registered.
Question: Where can I get forms to register a copyright?
Forms may be downloaded from the Library of Congress web site.
You may also get forms from the Copyright Office in person,
by mailing in a request, or by calling the forms hotline:
(202) 707-9100. Most public libraries can help you download
the forms.
Question: What is the “Fair Use” Doctrine?
The rights of the copyright owner are limited
by the “fair
use” doctrine, which allows reproduction of copyright
protected materials under certain circumstances. Unfortunately,
there are no clear-cut rules for what is “fair use.” There
are no “safe harbors” such as a specific number
of words or percentage of content.
Rather, there are factors that are used
to determine “fair
use:”
- Purpose and character of the use.
Is the use commercial or non-profit? Commercial use is less
likely to be “fair use.”
“Fair use” is more likely when the use is to illustrate,
comment, criticize, or educate.
- Nature of the copyright work.
Is the work factual or fictional? Factual use is more likely
to be “fair use.”
- Amount and substantiality of the
portion of the work used.
The courts have found that using 300 words of a 30,000-word
manuscript of President Ford’s memoirs was the “heart
of the book” and contributed to the conclusion that
it was not “fair use.”
- Effect on the potential market
value of the copyrighted work.
Will your use diminish the potential revenue for the copyright
owner? If there’s financial harm (loss of revenue to
the copyright owner), then it’s probably not “fair
use.”
Question: Are there “fair use” guidelines?
While there are no firm rules, the following guidelines may
help in evaluating whether your use is within the “fair
use” doctrine.
- Quote accurately and briefly.
(Word-count guidelines - such as 250 words or less - are not
a safe harbor).
- Commercial use is less likely to be “fair
use.”
- Fictional works receive more protection than
factual works.
- “Fair use” includes activities such as criticism,
comment, news reporting, teaching and research.
In conclusion, it’s a good business practice to register
your copyrights. Registering a copyright is inexpensive and
provides strong leverage in obtaining compensation in the event
of infringement (unauthorized, uncompensated use, outside the
fair use doctrine). If you wait until an infringement occurs,
it’s too late. If you would like assistance in registering
your copyrights, please call my office.
Jean D. Sifleet, Esq., CPA
Business Attorney
120 South Meadow Road
Clinton, MA 01510 USA
t. 978-368-6104
f. 978-368-6105
c.978-618-2162
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Jean Sifleet, business attorney, CPA and three-time entrepreneur, is pleased to announce the release of her new book, Advantage “IP”: Profit from Your Great Ideas. Visit the Smartfast Bookstore for details, and to order the book.
