Do you want to be able to take actual action against a copycat if they copy your work?
Then you must have a registered copyright before the infringement occurs.
That’s right: under United States law, if you want to be able to recover what are considered statutory damages (money lawfully allocated to you, for harm done by the infringement), you must have a copyright registration for your work.
Backing up slightly: what is a copyright?
IE, unless your work is an invention (patent), or name/logo/slogan (trademark), it falls under copyright laws. The question is, do you want to take action against someone copying something tangible you’ve created? The good news: it’s easy to do so.
Unlike patent (inventions) or trademark (brand name/logo/slogan) protection, copyright protection is nearly self- executing. There’s no need to obtain approval, conduct a prior art search, or secure registration by any agency, technically. However, there are some rights that can be permanently lost by failure to register soon enough, and registration is a prerequisite to certain remedies.
Copyright laws in the United States center around the concepts of “originality” and “fixation”. In other words, a “work” (a tangible work of authorship) is considered original when it is created by a human author, and has a “minimal degree of creativity”. In other words, you created it yourself; you did not copy it. This is yet one more reason why copycats never win, but I digress. The Supreme Court has said that, to be creative, a work must have a “spark” and “modicum” of creativity.
On the other hand, a work is “fixed” when it is captured in a “sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.” In other words, the Copyright Office considers a work “fixed” once it’s written down, recorded, etc.
U.S. copyright law provides copyright owners with certain exclusive rights:
Copyright also provides the owner of copyright the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations.
A common law copyright is a type of copyright protection that arises automatically upon the creation of an original work, without the need for registration or any other formalities. It is also sometimes referred to as an “unregistered copyright.”
Under common law copyright, the creator of an original work, such as a book, song, or photograph, is considered the owner of the copyright and has exclusive rights to reproduce, distribute, display, and perform the work. These rights exist even if the creator does not register the work with the government or use the © symbol.
Common law copyright protection is recognized in many countries, including the United States, but it is nowhere near as strong as statutory copyright protection, which is granted through registration with the government. One of the main limitations of common law copyright is that it is incredibly expensive to prove, much less enforce in court, as the creator must prove ownership and originality of the work without the benefit of a registration certificate. Simply put, a <$1000 investment at the outset when you create a course/design/tangible product can and will save you at least $20,000 if you want to protect the work without a federal registration. More often, this number is in the 6 figure range.
If your work is not in a “fixed form”, do not register your copyright until it is.
This is one reason why we always recommend placing the © symbol on the footer of your website, or other materials you may create within your business…but never recommend actually registering the copyright for your website. Any time you make edits or updates to the website (ie, a new blog post, swap out a photo), you would have to re-register the work.
Registering your copyrights is important because it provides legal protection for your original works and gives you several important benefits:
It’s important to note that while copyright protection exists automatically when you create an original work, registration provides additional legal protections and benefits. Therefore, it is generally recommended to register your copyrights with the appropriate government office to ensure maximum protection of your creative works.
The basic concept of copyright law is originality, not whether or not the work is novel. ie, You don’t have to be the first to write the book. You just need to be the first to write your book.
The good news about copyright laws? This is maybe one of the easiest areas of intellectual property law to maintain after you get the registration. A quick breakdown:
The most important way to maintain your copyright registration is going to be having a well-thought out, ready-to-execute plan against copycats. The most important takeaway: you must REGISTER before you can fully enforce against copycats. The second most important takeaway? Preemptive action (registration) will cost appx. <10% than having to act retroactively (after you’ve found out about your copycat). Reach out to us at firstname.lastname@example.org anytime for more information!
LEAVE A COMMENT