People often ask us whether they should register their copyrights. Actually that’s not true: what they really ask is whether they should copyright things. But as you’ll see in a minute, that’s the wrong question to ask.
In the old days, you didn’t get copyright protection unless you registered the copyright with the United States Copyright Office and observed a handful of other “formalities.” But since the passage of the Copyright Act of 1976, the copyrighting process is automatic. That’s right, the moment you produce (“fix it in a tangible form of expression” to use the language of the statute) a copyrightable (*** GIANT ASTERISK *** here that we will get to later) work (and by “work” we mean thing you produced that can be copyrighted – a “writing” according to the law, but it can be a song or a picture or a sculpture or a computer program or one of a host of other things) it is copyrighted! Voila! Done! That’s all there is to it. No application fees! No complicated paperwork! No lawyers!
So why in the world would you want to register a copyright if it is not required? The simple answer is that in most cases, you probably don’t want to register your copyrighted works. After all, you probably produce dozens if not hundreds of copyrighted works every day. For example, every email you write that’s the least bit original is probably copyrighted! Automatically the moment you save it or hit the send button! (Yes, that’s right, electronic – intangible – messages are “tangible” for purposes of copyright law as far as the Supreme Court is concerned. Isn’t this a great country!) Unless you are Shakespeare, most of what you send out probably isn’t at great risk of being copied – at least not for commercial gain. The reality is most of your copyrights are worthless. Sorry about that. The truth can hurt.
But some of what you produce is pretty good stuff. So good, in fact, that you probably don’t want anyone to copy it – at least not without paying you first. And maybe you don’t want your competition copying it at all. Or you don’t want it to be copied without being credited. These valuable copyrighted works might be worth registering.
“Hey wait a second,” you may be thinking. “Three paragraphs ago you said that all these “tangible” works are automatically copyrighted. So why should I pay a filing fee to the federal government (and possibly pay a lawyer to prepare a copyright application) when the work is already protected?” The answer lies in how much protection you want. Say someone copies your copyrighted work that you did not register. You’re hopping mad. You send them angry letters and demand that they stop copying your stuff, but they keep on doing it and thumb their nose at you for good measure. What can you do about it? Well, if the copyrighted work is not registered, the answer is not very much. You can send them more angry letters. You can badmouth them to your friends. But you cannot sue them in federal court unless and until you have registered the copyright to the work they have infringed.
“WHAT? You mean my stuff is copyrighted, but I can’t do anything to stop people from copying it if it is not registered? A lot of good that does me!” We hear you. We feel your pain.
If you’re very clever and paying close attention, then you’ve probably just thought of a great way around these rules. You may be thinking, “Aha, they said I can’t sue in federal court, but that’s okay. Instead, I’ll just sue in state court.” Sorry. No such luck. While you would be correct that most federal laws are enforceable in state courts, copyright law (and patent law and a few others) are ONLY enforceable in federal court. So if your copyrighted work is not registered, you cannot sue the infringer. But that is not the end of the story.
If you are even MORE clever, you have probably already thought of another solution. “So what if I didn’t register my copyrighted works before,” you think. “I’ll just wait until they have been infringed and then sue. No need to waste time and money registering them until they have been infringed.” If you think that, then you ARE clever. . . or at least right. But you may be too clever for your own good. Allow us to explain.
The good news is that you can go ahead and register a copyrighted work after it has been infringed and then sue the infringer in federal court. But if you failed to register the copyrighted work before it is infringed (that is, before someone copied it without your permission), then you can only win in court actual damages that you can prove. That means that if their copying was obnoxious and offensive but did not do you any actual economic harm (or at least no actual economic harm that you can prove in court), then you probably won’t actually win any money from them (but you’ll still have to pay your lawyer). Of course, if you can prove damages, such as lost sales or royalties, then you can win those actual damages in court. But if you had registered the copyright before it was infringed, you would be entitled not just to actual damages, but could chose instead to get “statutory” damages that you don’t have to prove.
“What the heck are statutory damages?” you ask. Nope. Statutory damages have nothing to do with damaging statues. They are damages that are specified in the law or “statute” that governs a particular area, in this case copyright. The Copyright Act specifies that if someone infringes your registered copyright, they are liable for damages of $750 to $30,000 for each and every work they infringe. That means that if you are a photographer and someone posts your portfolio of 100 registered photos on the web without your permission, you could win $75,000 to $3,000,000. Yes, that’s right. Up to a cool three million dollars – even if the infringement cost you nothing. Heck, the infringement could even have helped your business by giving you free publicity and you are still entitled to statutory damages. Don’t believe us? Check out 17 U.S. Code § 504, paragraph (c). Go ahead. Google it now. We dare you.
But there’s more. If you can prove that the infringement was committed “willfully,” the maximum amount of statutory damages for each copyrighted work infringed increases to $150,000. Yes, that’s $150,000 for each copied photograph in our example. So you could get as much as $15 million if someone willfully copies your 100 registered photos without permission. Pretty crazy, eh?
The bottom line is that the effect of registering a copyright is to put the world on notice that they had better not mess with your copyrighted stuff. So if you have produced something you care about or that is valuable to you, it might may sense to register its copyright.
Sounds good, right? You’re already thinking about all the stuff you’ve produced that other people have taken without giving you one red cent, let alone $15 million. Hold on one second. Remember that *** GIANT ASTERISK *** from the first paragraph? It may stand in the way of your getting rich. Not everything you produce can be copyrighted. In order to be copyrighted, it must be a copyrightable subject matter. Copyright protects the expression of an idea, not the underlying idea. So you can’t copyright a fact, but you can copyright the way you explain that fact.
But even if it is copyrightable, it needs to pass three tests in order to be copyrighted. First, it needs to be “fixed in a tangible medium of expression.” If you don’t understand what that means, don’t worry. No one does. Just nod and scratch your chin and say, “It appears to be fixed in a tangible medium of expression” like you are Sherlock Homes explaining something to Watson. And you will probably be right, because judges don’t know what it means either, so they will probably respond, “Brilliant, Holmes.”
Second, it must be original (not have been copyrighted by someone else or be in the public domain). This one is pretty obvious. How could you copyright something that someone else already wrote? Try this: “Dear U.S. Copyright Office, I demand that you approve my copyright registration for the complete works of Shakespeare, because he never copyrighted them and now they are ALL MINE!” They won’t go for that because you didn’t donate enough to your Congressman. So they will laugh at you. Now, if Disney tried to register the copyright for the complete works of Shakespeare, it might merit serious consideration. But the general idea is that you only get to copyright things that you produced.
Third, it must involve at least “minimal creativity.” And by “minimal,” they mean none. Well, almost none. In a case called Feist Publications, Inc. v. Rural Telephone Service Co., the Supreme Court drew a line in the sand. Two lower courts had held that a phone book could be copyrighted, but the Supreme Court overruled them, holding that listing facts in alphabetical order is not creative enough to merit copyright protection. So if you make a list of facts in alphabetical order, your list is probably not subject to copyright protection. Unless you write the list out in cute letters. That would be plenty creative. Or if you organized the facts in a more clever way. That would be fine, too.
But just because you’ve got a registered copyright to a work you produced doesn’t necessarily mean you will win if you sue someone for infringing that copyright. (“What the heck does infringing mean?” Simple, it means copying or making a derivative work or transmitting or. . . um, let’s talk about this later, shall we?) Why wouldn’t you win? Because there are defenses to copyright infringement. Two of our favorites are fair use and implied consent. They mean exactly what they sound like. NOT. Each one probably merits a future blog post. Or a stiff drink.
Okay, so now that you understand the basics of copyright registration, you want to copyright your company’s name? Argh. Next week we’ll talk trademark law.