Copyright law in the United States is governed by the Copyright Act of 1976. The United States Constitution defines the purpose of copyright law as “promot[ing] the Progress of Science and Useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries.” When you register your copyright, you will receive certain exclusive rights, such as the right to reproduce the copyrighted work, the right to prepare derivative works based upon the copyrighted work, and the right to perform or display the work publicly, among others.
Copyright law protects “original works of authorship” and the Copyright Act specifically extends protection to literary, musical, dramatic, pantomime, choreographic, pictorial, graphic, sculptural, audiovisual, sound recording, and architectural works. If you have created any of these works and fixed the work in a tangible medium of expression, you hold a common law copyright.
The Copyright Act requires “fixation” of the work for federal copyright registration. The fixation requirement simply requires that your work be reduced to a tangible medium of expression. For example, if you have written a book on paper, you have satisfied the fixation requirement because your book is capable of being read by another person and it is capable of being reproduced.
Once your original work is fixed, you may register your copyright with the United States Copyright Office. Copyright registration provides protection for the work for a certain period of time. If your copyrighted work was created after January 1, 1978, your copyright protection will last for the term of your life plus seventy years. If the copyrighted work is a work made for hire, a pseudonymous work, or an anonymous work, the copyright protection will last 95 years from the date of first publication or 120 years from the year of its creation, whichever ends first.
When you create one of the listed works under the Copyright Act and fix that work in a tangible medium of expression, you own a common law copyright. However, common law copyright protection does not provide several of the benefits which come with federal copyright registration.
The United States Copyright Act provides for federal registration of copyrights. Under the Copyright Act, certain artistic, musical, literary, dramatic, architectural, or other creative works may be registered as long as they are original works of authorship fixed in a tangible medium of expression.
Why Register Your Copyright?
Though copyright registration is voluntary, it is highly recommended. Federal copyright registration provides several benefits. The Copyright office will provide a Certificate of Registration to you and will record your copyright claim. Your federal copyright registration will provide notice to members of the public of your claim to the copyrighted work.
If you discover that someone is infringing your copyright, your federal copyright registration permits you to sue in federal court. If you do not own a federal copyright registration, you cannot sue in federal court, absent another federal claim. The federal courts hold exclusive jurisdiction over federal copyright claims.
If you register your copyright within three months of publication of the work or prior to any infringement of the copyrighted work, you are entitled to statutory damages and possible recovery of your attorney’s fees under the Copyright Act. Because of your copyright registration, you will not need to prove actual damages, but you may elect to do so.
If you register your copyright before publication of the work or within five years of publication, your copyright registration serves as prima facie evidence in court to the validity of your copyright. If you wait longer than five years after publication of your work to register your copyright, the court need not accept the registration as prima facie proof of validity.
Copyright Licensing Agreements
As the owner of a copyright, you own certain exclusive rights under the Copyright Act, including the right to reproduce your copyrighted work, the right to produce derivative works, the right to display the work, and the right to perform the work, among others. The rights that you own as the owner of the copyright are often referred to as the copyright owner’s “bundle of sticks.” As with a real bundle of sticks, you can give away the entire bundle of sticks to a third party, or you may give only one or two of your sticks to a third party.
Copyrights are personal property rights and as such, they are freely transferable. Copyrights may be assigned and transferred. For a copyright assignment, the copyright owner sells the exclusive rights to another party and has no control over how the party uses the copyrighted work. Transfer of any of your exclusive rights under the Copyright Act may be done on an exclusive basis, to one individual or entity, or on a non-exclusive basis, to multiple individuals or entities. For example, if you are the author of a book, you may grant your publishing company the exclusive right of reproduction, which allows them to make copies of your book for sale.
If you want to transfer any of your exclusive rights, the transfer of rights must be in writing and signed by you, as the owner of the rights. If you have an authorized agent or attorney, that individual may sign your copyright transfer on your behalf. If you are granting the exclusive rights to multiple parties so that the grant is not exclusive, no signed writing is required. If you transfer your copyright to someone else, the Copyright Office permits you to record the transfer in the Copyright Office. Although recordation of a copyright transfer of ownership is not required, it provides certain benefits, such as providing notice to third parties of the copyright transfer.
A copyright license permits the copyright owner to maintain ownership of the copyright while allowing another party to use some or all of its exclusive copyright rights. A copyright license is preferred where the copyright owners wants to maintain some form of control over the copyrighted work.
Copyright licenses may be either express or implied. Express copyright licenses are express grants of rights created by an actual agreement among the copyright owner and the licensee. Implied licenses are generally created by the conduct of the parties.
Copyright Cease and Desist Letter
When the owner of a copyrighted work believes that someone has infringed their copyright, they often contact a copyright lawyer. The copyright lawyer will generally issue a copyright cease and desist demand letter.
Do you need a copyright cease and desist letter?
Our copyright lawyers routinely draft and issue copyright cease and desist letters to infringing parties. Generally, these letters will demand that the infringing party cease and desist all use of your copyrighted material. The letter may also request monetary damages or requests for further information, such as sales figures. Copyright cease and desist demand letters usually include a one to two week time period for the accused infringer to respond.
Did you receive a copyright cease and desist letter?
If you are the recipient of a copyright cease and desist letter, you may need to retain a copyright lawyer. If the owner of the work holds a valid copyright registration, you may be facing statutory damages, which can range from $750 to $30,000 per act of infringement. If you have been accused of willful copyright infringement, you may face up to $150,000 in statutory damages. The copyright owner may also elect so seek actual damages against you or an award of lost profits. If you do not respond to a copyright cease and demand within the time period stated in your letter, the copyright owner may choose to file a federal copyright infringement lawsuit against you. The copyright owner may be able to recover their attorneys’ fees incurred in the lawsuit.
Unfortunately, many copyright trolls exist. Copyright trolls typically own a registered copyright, but may do nothing with that copyright but issue copyright cease and desist letters or file copyright infringement lawsuits simply because they know they may obtain money by doing so. Many times, you may have a valid defense to a copyright troll. For example, your use of their material may be fair use, which is a defense to copyright infringement.
If you are the recipient of a copyright cease and desist demand, contact the copyright lawyers at Ritter Spencer PLLC. Our copyright attorneys are experienced in defending against copyright trolls and negotiating with copyright owners who believe that their works have been infringed.
Publishing Contract Review
A publishing contract is a contract between a publishing company and an author for the publishing company to publish the written material composed by the author. If you have written a book, manuscript, novel, screenplay, or other form of written material that you desire to be published, you will likely negotiate with several publishing companies. Each company will have their own publishing contract or publishing agreement. Many times, these contracts are littered with onerous terms that may not benefit you as the individual author. For example, many publishing contracts attempt to have you assign your copyright for the entire term of the copyright to the publishing company.
As a first time author or writer, it can be difficult to negotiate some of the boilerplate terms which often appear in standard publishing agreements. However, it is important to be aware of these terms and to understand their implications before you sign any publishing agreement.
The lawyers at Ritter Spencer PLLC are experienced in reviewing publishing contracts. We can provide advice on which terms are favorable and on which terms you may want to attempt further negotiations. Our lawyers can also negotiate on your behalf with the publishing company.
Is someone infringing your registered copyright?
If you believe that someone is using your copyrighted work without your permission, it may be necessary to take legal action. When you own a copyright that is registered with the United States Copyright Office, you have the right to file a lawsuit in federal court against someone infringing your copyright.
Your copyright registration entitles you to statutory damages for infringement of your copyright, which can range from $750 to $30,000 per act of infringement, or to actual damages or lost profits. If the infringer has willfully infringed your copyright, you can receive statutory damages for willful infringement up to $150,000. You may also be able to recover your attorney’s fees incurred in the lawsuit.
Have you been accused copyright infringement?
If you have received a copyright cease and desist or if you have been served with a federal Complaint for copyright infringement, it is important to retain a copyright lawyer for your defense. Certain defenses exist that may preclude a finding of copyright infringement, such as the fair use defense. However, the fact that you did not know that the work was copyrighted is no defense to a copyright lawsuit. Generally, this is referred to as being an innocent infringer. Being an innocent infringer may help to mitigate a damages claim against you, as the court will have the discretion to reduce a damages award to no less than $200 per act of infringement.
The United States Copyright Act is routinely referred to as a strict liability statute. This means that the owner of a copyright has no requirement to prove that you acted willfully or intentionally in using their copyright, but they may do so to secure an award of enhanced damages for willful copyright infringement.