Copyright Overview: An Ounce of Prevention is Worth a Pound of Statutory Damages
Both attorneys and laypersons who are not sufficiently familiar with current U.S. copyright law are often guilty of relying upon, and spreading, popular myths and misconceptions concerning basic copyright related issues. In most instances, reliance on copyright myths and misconceptions will not result in any harm. However, for the minority of copyright owners who must one day attempt to protect their copyrighted works, such reliance can have potentially disastrous consequences that can effectively preclude enforcement of the copyright. In hopes of preventing such an unfortunate outcome, a brief primer on the basics of copyright law is provided below.
Contrary to popular belief, under current law, a copyright is not obtained upon either the filing of an application for a copyright registration or by marking the created work with a copyright symbol. In fact, the relevant copyright statute provides that “. . . copyright protection subsists . . . in any original works of authorship fixed in any tangible medium of expression . . . .” While entire forests have likely been decimated to generate the paper necessary for legal scholars to expound upon the nuances of the foregoing statutory language, it is sufficient for most readers to know that when an author puts pen to paper, or paintbrush to canvas (etc.), to create an original work, the author has a copyright in the work thus created.
Some of you may now be asking yourselves why you went through the trouble and expense of registering your copyrights and marking your creative works with copyright notices if such actions are not required to obtain a copyright. Though not required, the law provides certain attractive benefits to those who take such actions.
Obtaining a Copyright
Registering a copyright with the U.S. Copyright Office is, in most cases, a relatively simple and inexpensive process. The applicant is required to provide the title of the work, the name of the author, the dates of creation and publication (if published), and several other miscellaneous pieces of information. The applicant is also required to attach “deposit” copies of the work, and submit a registration fee (currently $45) along with the application. The registration is considered “timely” if an application is filed prior to infringement or if it is filed within three months of publication.
By timely registering your copyrights, you gain several advantages should it become necessary to protect your rights. The most significant advantage of timely registration is that it gives you the option to elect to receive “statutory damages” for infringement of your copyright, as well as your attorneys’ fees expended in pursuing a successful claim. Although a copyright holder may choose to claim actual damages arising from the infringer’s actions and the profits made by the infringer that are attributable to the infringing acts, such damages are often difficult to prove and commonly viewed as speculative by the court in many circumstances. However, timely registration allows for the election of statutory damages which can range, in the discretion of the court, from $750 to $30,000 per infringed work, and up to $150,000 for infringement found to be willful.
In the past, failure to provide notice of copyright by marking a published work would result in the loss of copyright. Under current U.S. copyright law, this is no longer true. However, like copyright registration, providing notice gives the copyright owner a leg up in an enforcement action. One such advantage is that an infringer cannot successfully assert that his infringement was an innocent infringement. If the infringer’s actions are found to have been innocent, both actual and statutory damages may be substantially reduced. Therefore, it is prudent to mark any work that is to be published with a proper copyright notice.
A valid copyright notice should be affixed in a location and manner that gives reasonable notice of the claim of copyright. In other words, the copyright notice should be conspicuous and not hidden. A copyright notice should take the following form: 1) © (the letter C in a circle) or the word “Copyright” or “Copr.” (we recommend using the © symbol as some foreign countries require its use); 2) the year of first publication of the work; and 3) the name of the owner of the copyright. Thus, a proper copyright notice would appear as: © 2007 Zachary Hilton (other limited variations are permissible such as: Copyright © 2007 Zachary Hilton).
A final issue affecting many businesses relates to ownership of the copyright of a work created by an employee or independent contractor. An employer owns, and is considered the author of, any work prepared by an employee that is prepared within the scope of his or her employment. In contrast, an independent contractor is the copyright owner of all works created by the independent contractor, including works which the independent contractor has specifically been hired to create. Therefore, it is essential that a company enter into a written agreement with an independent contractor assigning ownership interest in any copyright before work begins.
While there are many other issues that arise in the enforcement of copyrights, this article points out some of the more common issues. Nevertheless, do not hesitate to seek the assistance of one of our attorneys to obtain advice on your specific circumstances. An ounce of prevention now may be worth a pound of statutory damages later.
Conclusion Zach Hilton is an associate at Carstens & Cahoon, LLP. His primary areas of practice include patent and trademark prosecution, litigation and licensing.
This blog is maintained by Carstens & Cahoon, LLP to inform readers of recent developments in intellectual property. Solely informational in nature, this blog is not intended to create an attorney-client relationship or to be used as a substitute for legal advice or opinions. For more information, please visit
www.cclaw.com. By Zach W. Hilton