What Is Copyright Protection? When Should A Copyright Be Filed?
What is copyright? Copyright is a United States Constitutional right that provides protection to works of original authorship. There are various types of works, including paintings, illustrations, photographs, musical compositions, sound recordings, and books, among others. The U.S. Copyright Office has a full list available. Authors of such works are also broadly defined to include all creators of these works. Companies can and often do protect their own copyright.
What Qualifies For Copyright Protection?
Work qualifies for copyright protection under the Copyright Act only if it meets specific requirements. These include originality (they need to be unique) and fixation (they must be fixed in a tangible medium of expression, such as on paper, canvas, photographic film, or video and audio tape). Copyright includes the right to reproduce the work, adapt the work to create derivative work, distribute the work, perform the work, and publicly display the work.
In many cases, an employee or independent contractor produces work for the entity that secures intellectual property. For example, trade logos, brochures, operations manuals, posters, and other marketing materials are created by outside vendors. Accordingly, it is essential to make sure that copyright is assigned to the company. Otherwise, technically, the person creating the work owns it. This type of agreement is called a "work made for hire agreement." A work made for hire is either created by an employee in the scope of employment, specifically ordered, or commissioned by another party. If it is created or commissioned by another party, a work-made-for-hire agreement must be created.
Copyright Formal Protection
Copyright protection does not require formal registration. However, it is recommended that authors, with limited exceptions, pursue formal registration as soon as possible.
The reasons include that:
- With a few differences, to sue in court for copyright infringement, a copyright owner must register its copyright in a work before suing for infringement.
- A registered copyright owner may recover statutory damages and attorney's fees only if the work was registered before the infringement commenced (or within three months after first publication).
- The registration is generally prima facie evidence of the copyright's validity.
- Registration may eliminate an innocent infringement defense.
- The copyright owner may record the registration with the U.S. Customs Service to stop the importation of infringing copies.
Timing
The requirement for when to file for the US Copyright Office is not absolute. Copyright protection can and does attach when the document is created. However, formal copyright protection is only effective when a copyright application is filed with the Copyright Office. It is best to do this as soon as possible. Copyright protection can be applied, and recordings of the process are available.
Originally Published by Emerge Counsel
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
