Why every tangible work has to be copyrighted

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?

A copyright is the type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.

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.

How do I know if I have something I should copyright?

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.

What rights does copyright provide?

U.S. copyright law provides copyright owners with certain exclusive rights:

• The right to reproduce the work (make copies)
• The right to prepare derivative works based upon the work.
• The right to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.
• The right to perform the work publicly, or display the work publicly

Copyright also provides the owner of copyright the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations.

Can I claim copyright rights just by creating something?

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.

When should I register my copyright?

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:

1. Establishing proof of ownership: When you register your copyright with the appropriate government office, you establish a public record of ownership. This record can be used as evidence in court if someone tries to use or claim your work without your permission.
2. Legal protection: Registration provides a legal presumption of ownership and the exclusive right to use and distribute your work. If someone infringes on your copyright, you can sue them for damages and receive compensation.
3. International protection: Registering your copyright in your home country may also provide protection in other countries that have agreed to honor copyright protection under international treaties.
4. Public notice: When you register your copyright, you can include a copyright notice with your work, which puts others on notice that your work is protected by copyright law.
5. Ability to recover statutory damages and attorney fees: If someone infringes on your copyright, you may be able to recover statutory damages and attorney fees if your copyright is registered with the appropriate government office.

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.

How do you keep a copyright registration active?

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:

• Under the 1976 Act, an author is protected as soon as a work is recorded in some concrete way, since the Act protects all expressions upon fixation in a tangible medium. 17 U.S.C.A. § 102(a). Protection under the 1976 Act is secure until 70 years after the death of the author. 17 U.S.C.A. § 302(a)
• Certain exclusive rights belong to the author, to her assigns, or sometimes to her employer if the work is a “work made for hire.” 17 U.S.C.A §203(a)(b)(d). This is one reason, of many, why you must specify copyright ownership within any contract you sign. 
• Once you have your copyright registration in hand, it’s relatively easy to maintain it. However, there are a few best practices to keep in mind, in order to ensure that registration stays in place.  
• Use your copyright notice: Displaying a copyright notice on your work can help put others on notice that the work is protected and may deter infringement. More importantly, this helps create a “paper trail” that could be critically important in defending your rights against infringers. Simply put a © on the work that has been registered. Example: © Paige Hulse, LLC 
• Keep Records: Keep accurate records of when your work was created, when it was published, and when any changes were made. This can be helpful if you need to defend your copyright in court. It is wise to notify your intellectual property attorney if any changes are made to the work, so that they can keep updated records. 
• Monitor for infringement: Make it a practice to regularly monitor for potential infringement of your copyrighted work. This can include conducting online searches, monitoring social media, and setting up alerts for potential infringements (such as Google alerts). This is also something your intellectual property attorney can assist with. 
• Enforce your rights: If you discover infringement of your copyrighted work, quickly take action to enforce your rights. To be clear, this doesn’t mean taking quick arbitrary action- strategy is key. Generally, enforcement can include sending a cease and desist letter, negotiating a licensing agreement, or filing a lawsuit. This is an example of the phrase “being forewarned means being forearmed”. Have a strategy in place before the infringement occurs, so that you can simply execute that strategy if the need arises. 
• Renew your registration: This probably won’t affect you, but looking to the future: Assuming your work has been created after 1978, your copyright registration is valid for your lifetime, plus 70 years. For works created before 1978, the duration of copyright may be different. In some cases, it may be necessary to renew your copyright registration to keep it active.

At the end of the day,

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 team@paigehulse.com anytime for more information!