Copyright Frequently Asked Questions

Do I Have to Register My Copyright to Have Rights to My Creation?

No, you don’t have to register your work with the United States Copyright Office to protect your creative works from copyright infringement. At the moment of creation, your work is protected by copyright law. This is actually embodied in the United States Constitution in Article 1, Section 8, which empowers Congress, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” So there you have it — Your exclusive rights to your creations are  protected by the U.S. Constitution!

Why Should I Register My Copyright?

The prompt registration of your copyright with the United States Copyright Office is necessary before bringing a lawsuit for copyright infringement. Moreover, “timely” registration — meaning registration of the copyright within 3 months of the publication of the original work or before infringement of the work begins makes it easier to sue for copyright infringement and recover money damages for the infringement. Registration creates a legal presumption that your copyright is valid and that you are entitled to a recovery of money damages up to $150,000 plus attorneys’ fees, even if you can’t prove any monetary damages. So that’s 150,000 reasons to register your copyright with the Copyright Office.

What Are Damages for Copyright Infringement?

There are two types of damages for copyright infringement, actual damages and statutory damages.

If you violate an owner’s copyright, you are liable to her for any actual damages suffered as a result of the infringement plus the profits the infringer made on the infringing work. The infringer’s gross revenue attributable to the infringement is the measure of the profits, putting the infringer in the unenviable position of having to prove any expenses or element of the profit attributable to factors other than the theft of the infringed property. That’s a heavy burden to prove.

If she desires, instead of proving actual damages and profits, the injured party can choose to get statutory damages of between $750 and $30,000 in damages for each work infringed. In the instance where “willful” infringement can be proved, damages of up to $150,000 are possible.

Do I Have to Say My Work Is Protected By Copyright To Claim Copyright Infringement?

While it’s a good practice to use a copyright notice on your work, as of March 1, 1989, the use of a copyright notice on any published work is optional.

If you’re wondering if a work is permissible to copy because it doesn’t have a copyright notice, remember that in many cases works covered by copyright law don’t even have a notice on them. So don’t rely on the lack of a copyright notice to protect you against a claim of copyright infringement.

How Long Does A Copyright Last?

It depends on when the work was published. Any work published after 1977 has a copyright that lasts for the life of the creator plus 70 years. Any works published before 1923 are considered in the public domain, and free from copyright protection.

A work that was created after 1922 but before 1978 is protected for 95 years from the date of publication — publication meaning that is was made available to the public. If the author wrote a play, and locked the pages in a drawer, that is not considered “published” until it’s been seen by the public. You have to look at the date of publication to be sure how long a copyright will last. This can get a bit confusing, because a new work can be based on an old work, and when the new work is published, then the clock starts ticking as of the time of publication of the new work, not the old work upon which it was based.

Can I Lose My Rights in My Work If I Don’t Defend Against Copyright Infringers?

Copyrights are not like trademarks, which require the owner to defend against infringers or lose their rights. Unless you explicitly give permission for your work to be copied (grant a license) or your rights have expired, you still own the exclusive rights to your creations.

How Can I Defend Against a Claim of Copyright Infringement?

One of the most popular defenses to a claim of copyright infringement is the “Fair Use” Doctrine. The Fair Use Doctrine permits the limited use of the copyrighted material of another, even without requesting permission.  Fair Use is based on the idea that the public has the right to freely use parts of copyrighted works for the purpose of criticism or commentary.

The issue often comes up, however, as to what the word “limited” means. Here are some uses that are generally regarded as Fair Use:

• Educational use, such as the photocopying of a small portion of a work by a teacher for use in the classroom
• Parody, such as imitation of the work of another in a way that is comical
• Scholarship and research, such as quoting a passage from a scientific or literary work for the purpose of illustration or to make some clarification about the original author’s idea.
• News reports, such as the quoting or summary of an article in a media report or broadcast
• Comment or criticism, such as excerpting part of a work for the purpose of commenting upon it

Non-commercial use of this nature is more likely to be fair use. When use strays into areas of private commercial gain, then such use is more likely to be found an infringement of the copyright holder’s rights. If your work competes with the work of the original author, for example, then your use is more likely to be seen as a copyright violation rather than fair use. And attribution will not get you off the hook for copyright infringement, either. That’s like stealing, and then admitting that you stole it. So get permission from the original author if you are in doubt as to whether your use is “fair use” or not.

Fair Use is often dependent on a wide variety of factors. If you’re in doubt, be sure and contact a copyright attorney.