U.S. copyright law exists to protect the interests of content creators by establishing them as the sole owners and distributors of original works of authorship such as books, websites, and videos.
Whether you are deciding if you want to legally protect your creative work, contemplating if you’re going to file an infringement lawsuit, or wondering how you can legally use copyrighted material, it is best to start with an understanding of the basics.
In this article we’ll briefly cover what a copyright is, the exclusive rights you have as a copyright owner, the actions that constitute a copyright infringement, the various intricacies of registering a copyright, and what legal advantages a registration provides.
However, please keep in mind that an article such as this is no substitute for a conversation with a copyright attorney.
Always speak with an attorney if you have any specific questions about copyright and whether your work is protected.
What is a Copyright?
A copyright is a form of intellectual property protection provided by U.S. federal law.
There are no state-level copyright laws, meaning that any legal dispute regarding a copyright is subject to the same federal governing laws, regardless of where the two parties settle the dispute or where the dispute originated.
The current law governing copyrights in the U.S. is the Copyright Act of 1976, as codified in Title 17 of the U.S. Code.
Although copyright law is a type of intellectual property law, it differs from patents, trademarks, and trade secrets in many important ways.
Copyright specifically protects the fixed, tangible medium of expression in a work of authorship against someone else copying it.
Authorship, in this context, means that the work is not copied from another source and is the original creation of the author.
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device… (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.17 U.S.C. 102
An original work of authorship is an independently created work that possesses a minimal degree of creativity, meaning that the work has not copied an earlier work.
A work is “fixed” when captured in a tangible and permanent form, such that the work can be reproduced, perceived, or communicated for “more than a short time.”
Importantly, the work does not have to be in its final form to be “fixed.” Drafts and early versions of work are considered as equally “fixed” as the final version.
Finally, remember that content creators do not have to register their work to gain copyright protections for their original work.
Instead, these creators gain copyright protections as soon as they fix their work in a “tangible form of expression,” such as a manuscript or a recording of a song.
Why would I want to register a copyright?
While registration is not required for you to own a copyright, it is the only way to legally enforce your exclusive rights as a copyright holder during litigation.
Registering a copyright creates a public record of your copyright claim, and registration is a prerequisite for infringement lawsuits regarding any works that originated in the U.S.
Registration is also necessary to ask U.S. Customs to block infringing goods from being imported into the country.
Further, registration acts as prima facie evidence in court for the validity of your copyright, provided the registration occurs before or within five years of publication.
This means that the court will assume the validity of your copyright unless the defense provides incredibly persuasive evidence to the contrary.
The bottom line is that the legal advantages of registering your copyright far outweigh the time and energy that goes into the registration process and should strongly be considered by creators while they are making copyrightable work.
What damages can I recover if I register my work?
If you register your work within three months after selling or distributing your work to the public, or prior to the infringement taking place, you may be entitled to statutory damages if you win your infringement suit.
Statutory damages are an easier form of compensation to win in a copyright infringement lawsuit, since your attorney does not have to prove that the infringement caused any actual damages.
Meaning, you are awarded money as a result of the person using your work, regardless of whether they profited off that usage.
In contrast, without registering within the specified three-month time span, only an award of actual damages is available as a remedy.
Actual damages are awarded in the amount of profit you have lost from the defendant’s use of your copyrighted material.
For example, if the defendant sold knock-off copies of your artwork, you may be able to recover damages proportional to the amount that their knock-off copies affected your business.
To prove actual damages, your attorney not only has to prove that the defendant used your copyrighted material, but that they have profited from it at your expense.
Establishing that there were actual damages requires your attorney to prove more than they would have to if statutory damages were an option.
The less your attorney has to prove, the more successful your case is likely to be.
Statutory damages start at $750 per act of infringement and can go up to $30,000 per act of infringement.
If you can show that the other party willfully (intentionally) infringed and you have statutory damages, then the range of damages goes to at most $150,000 per act of infringement.
This makes it very important and worthwhile to register your work to qualify for statutory damages.
What can I register as a copyright?
- Literary works may include books, software code, and comics.
- Musical works may include compositions in writing as well as the lyrics (playing a cover may be a public performance of the musical work).
- Dramatic works.
- Pantomimes and choreographic works.
- Pictorial, graphic, and sculptural works.
- Motion pictures and other audiovisual works.
- Sound recordings (this is the master recording that may be an mp3/mp4 file and specifically online).
- Architectural works.
These categories are broad and were created for the registration process.
The following is a list of examples of things that cannot be copyrighted:
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, devices. However, written or recorded descriptions, explanations, or illustrations of such things can be copyrighted (such as technical manuals or diagrams).
- Titles, names, short phrases, and slogans, which are generally covered under trademark law.
- Works that are not fixed in a tangible form of expression, such as a speech or performance that is not recorded or written down.
- Works consisting entirely of information that is commonly available that were created without originality. For example, standard calendars, measures, rulers, any most kinds of lists and tables of data compiled from public documents or common sources.
- Works by the U.S. government.
As you can see, copyright law may be broad, but it does not protect every instance of creativity.
How long does a copyright last for?
Some people think the duration for every copyright registration is from the moment of the work’s creation to 70 years after the death of the author or artist.
However, this is only true for works created by an individual author who is the sole owner of the copyright in question.
In most cases, the duration of most copyrights will depend on the type of entity that owns the copyright, the number of authors, and a variety of other factors.
If the work is a “joint work” for example—meaning there are two or more authors who hold the copyright—the term lasts for 70 years after the death of the last surviving author.
As another example, work made for hire has a term of 95 years from the date of publication, or 120 years after its creation, whichever expires first.
What are the Copyright Holder’s Exclusive Rights?
Copyright owners hold a variety of rights, such as the right to reproduce, sell, or display the work publicly.
These rights, as listed in 17 U.S.C. 106, are exclusive, meaning the holder of the copyright is the only entity that is allowed to do any of the following with the work:
- Reproduce the work in copies or phonorecords.
- Prepare derivative works based on the work. Note that a derivative work is not an exact copy. It is a creation based on the existing copyrighted work, such as: translations, adaptations, and reproductions of the work in different formats. For example, a copyright holder is the only person who has the right to make a movie from their copyrighted book or authorize someone else to do so.
- Distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.
- In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
If someone uses the work in any of these ways without the copyright owner’s permission or a legal defense such as fair use, they’ve committed copyright infringement.
Assignments versus Licenses
You can transfer copyright ownership pretty easily, and the sale of such ownership is one of the main reasons people deal with copyright law.
This is referred to as an assignment of rights.
A copyright holder can transfer any or all of their exclusive rights to another party.
For example, if you write books, then the publisher may print (“make copies”) and distribute, but you may still wish to retain the other rights under the statute, such as the right to prepare derivative works including sequels.
Additionally, you can grant someone rights without relinquishing your own. This temporary granting of rights is called a license.
For licenses, you may either grant an exclusive license or a nonexclusive license:
- An exclusive license is permission for the licensee to be the sole person or entity to have the license.
- A nonexclusive license means you can provide the same type of license (like reproduction of copyrighted work) to multiple people or entities.
If you are providing an exclusive license or an assignment, you need to have the agreement in writing, conveying the rights to the copyright to the other person or entity.
However, if you are granting a nonexclusive license to someone or an entity to your work, the agreement does not have to be in writing.
You can also give a copyright to another party through a will, or pass it along as personal property.
While it is not required, for legal purposes it is recommended that you report the transfer to the U.S. Copyright Office in case of any legal disputes following the transfer.
The Office does not provide a specific form for doing so, but does provide specific requirements for this process on their website.
In any transfer of a copyright interest, it is advised that you have your attorney overlook all written agreements that you sign and that you consult your attorney throughout the process.
How Do I Register a Copyright?
Registering a copyright is relatively easy and inexpensive.
You have the option to either mail the application or complete it online:
- When mailing the application, the initial application fee will cost around $125, depending on what type of work you are registering.
- When completing the application online, the fee is only $45 and does not vary based on the form of work you are applying with.
However, the U.S. Copyright Office encourages applicants to submit their application online if your work is an individual literary work, visual arts work, motion picture, musical work, sound recording, or, other performing arts.
Your copyright registration application will establish the basic facts of your claim.
- The title of the work;
- The author of the work;
- The name and address of the claimant/ owner of the copyright;
- The year of creation;
- Whether the work is published;
- Whether the work has been previously registered; and
- Whether the work includes pre-existing material.
You will also have to submit a non-returnable “deposit copy.” Depending on what medium your work is in, and the nature of the work, the requirements surrounding the deposit copy can differ.
The main differences in deposit copy requirements depend on (1) whether the work has been published or not, (2) whether it’s in a digital or physical format, and (3) if the author published the work in the U.S. or a foreign country.
If you published your copyrighted work in the U.S., it is subject to a “mandatory deposit” provision.
The mandatory deposit provision requires the copyright holder to send two complete copies of the “best edition” of their published work to the U.S. Copyright Office within three months of publication.
The “best edition” of a work is “the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.”
You can comply with this requirement when you register your work.
The purpose of this requirement is to ensure that the Library of Congress has a copy of every copyrightable work that is published in the U.S.
The Copyright Office uses the deposit copy as a way to evaluate your claim and to maintain the public record of registered copyrights.
Once the Office receives your application, it will become part of the public record. When your work is part of the public record it can be viewed by anyone upon request.
However, if you do not fill out your application thoroughly and accurately, applying to register a copyright becomes more expensive.
If the Copyright Office rejects your application, you will receive a notice in writing and can choose to appeal the decision.
The Office may reject your application if you did not provide enough information, or if the work in question is not copyrightable.
In this case, you will have to send a letter requesting reconsideration, detailing your objections to the refusal no later than three months after the date that appears on the refusal notice.
The fee for the first reconsideration request is $350.
If the Copyright Office denies your appeal, they allow you to submit a second reconsideration request if you so choose. The fee for the second request is $700.
What Can I Do if Someone Infringes on My Copyright?
If someone infringes on your copyright you can settle the dispute in or out of court, depending on the circumstances.
Again, without registration, you will not be able to enforce your rights as a copyright owner legally and the infringer cannot be taken to court.
Further, Fourth Estate Public Benefit Corp. v. Wallstreet.com, LLC clarified that the U.S. Copyright Office must issue registration PRIOR to the suit, but the holder may recover damages arising before registration.
For this reason, if someone infringes on your copyright and you have yet to register it, you can reach out to the infringer and ask them to stop (sending a cease and desist).
However, practically speaking, your cease and desist will always be more persuasive if you have a registration because the person knows you’re able to sue should they ignore you.
While there is an expedited process for those who haven’t registered their works and notice infringement, referred to as “Special Handling,” the cost is $800 for registration which is well beyond $35-$55 for non-expedited filings.
Beyond that there are no formal or binding legal actions that you can take until you register your work with the Copyright Office.
Copyright Infringement Basics
Infringement comes in many forms, such as unauthorized reproductions, offering the work for download without receiving permission from the owner, and creating a derivative work.
A vast majority of legal disputes get dismissed or are settled out of court.
While you will still need an attorney’s help, you may be able to come to a resolution with the infringing party that does not require the lengthy and expensive process of actually going to trial.
Most individuals accused of copyright infringement would also prefer to settle the dispute out of court, making an alternative resolution process more favorable to the copyright holder.
However, if the damages are worth enough to go through litigation, or if you are eligible for statutory damages, you may want to bring a lawsuit.
Copyright Infringement Lawsuits
If you decide to bring a lawsuit, it will be a civil lawsuit heard by a federal court.
However, in cases where someone intentionally and willfully infringes on your copyright for profit, the District Attorney has the option to bring criminal charges against the infringer.
Regardless of the method of dispute resolution that you chose, you and your attorney will have to prove the following:
- The infringer had access to your work, and saw or heard it (i.e. that the infringer was able to see your work online, in a bookstore, etc; that the work was not just kept in your house with no way for that person to see it);
- The infringer actually copied your work, and that it is not just coincidentally similar; and
- The copy is “substantially similar” to yours.
The more evidence you have that proves the three elements listed above, the stronger your case will be.
It is important to note that you will have a weak case if you cannot show that the infringer has previously seen your work.
This evidence is important because if the infringer independently created a work that just happens to be similar to yours, they also have a legal right to protect their original work.
Because copyright infringement suits depend entirely on the specifics of each case, there is no clear cut formula that courts use to determine if the infringing work is “substantially similar.”
If someone infringes on your copyright, you should consult an attorney to discuss your options.
They will be able to walk you through the formal and informal options for resolution, and will also be the person who will file your lawsuit if you decide to take that route.
What is Fair Use?
There are certain uses of copyrighted material that do not require the copyright holder’s permission or payment to the holder.
According to the U.S. Copyright Office, and Section 107 of the U.S. Copyright Act, the purpose of fair use is to “promote freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.”
Fair use allows limited copying of copyrighted material for educational and research purposes.
The Copyright Act provides the criteria for determining if the reproduction or use of copyrighted material falls within the fair use parameters.
Broadly, the reproduction or copying of copyrighted work falls under fair use in situations where the copyrighted work is used for criticism, comment, news, reporting, teaching, scholarship, and research.
The following is a list of examples of cases where the court determined fair use of a copyrighted work:
- Copying multiple features of the copyrighted work to make a parody that criticizes the original work.
- Using “thumbnail” copies of photographs as a visual for online search engines.
- Displaying a copy of a photograph when the photo is the subject of commentary or a public controversy.
- Copying T.V. programs for the purpose of “timeshifting” (i.e. making a temporary copy of a T.V. show, on something like DVR, so that the viewer can watch the program later).
- Transferring digital copies of recorded T.V. programs that consumers lawfully possess onto their mobile devices (i.e., if someone was to buy a movie on iTunes on their computer, they are able to download it onto their phone legally).
As you can see in these rather arbitrary examples, the law does not set out an objective standard for if something is used in accordance with fair use.
An important note, the case references above were incredibly narrow, and simply because you think your use of copyright sounds similar does not mean a court will also label your use as a fair use.
All copyright infringement cases are fact-specific, and courts have not developed bright line rules to say if you make a parody or if you make a commentary, then it will always be fair use.
Instead, 17 U.S.C. 107 defines four factors for the court to evaluate the use with: purpose and character, nature, amount and substantiality, and the effect of the use on the market.
This means that every case is subject to the evaluation of the use, and the decision will differ based on the individual facts of each case.
Purpose and Character
The first evaluative factor is to determine the purpose and character of the use.
This factor mainly concentrates on if the purpose is for commercial use (i.e. making money) or is for nonprofit educational use.
This does not mean that all nonprofit uses are fair and that all commercial uses are unfair.
In general, courts look to see if the party claiming fair use has added something of their own to “transform” the original work.
“Transforming the original work” means that the use of the copyrighted material would not be mistaken for the original copyrighted material itself.
For example, if a user uploaded a copyrighted movie onto youtube with no added content, that would not be “transformative.”
But, If a user uploaded a video with a split-screen, one side the copyrighted movie, and the other side the user commenting on the acting in that movie, that could be “transformative.”
Thus, the more of their own work a user adds in conjunction with the copyrighted work, the more likely the use and purpose will fall under “fair use.”
However, this statement requires three immediate follow-ups:
- Simply because you invest a large amount of effort or time in an action will not in and of itself make your use fair (Courts refer to this as “sweat of the brow”).
- There is a fine line, a legal gray area, between transforming a work to make it your own work and having the subsequent work qualify as a derivative work, which is infringing on another right of the holder.
- Lastly, as there are no bright line rules in copyright infringement, there is no magical percentage of changes to the original work that a new user can make to be considered transformative and not infringement.
The “nature” factor focuses on the copyrighted work rather than the use of it by the alleged infringer.
The nature of the work is analyzed by “the degree to which the work that was used relates to the purpose of copyright law: encouraging creative expression.”
This means that the more “creative” the form of the copyrighted work is, the harder it will be for someone to justify copying the work as fair use.
Put another way, the more creative the work is, the more it is protected by copyright law.
For example, a song, movie, or fictional story uses more “original” ideas that employ more creativity than nonfiction stories or news reports.
Thus, the use of a copyrighted song, movie, or fictional story is less likely to fall under fair use than the use of a nonfiction story or news report would.
If you’ve studied copyright, then odds are you read Feist Publications, Inc. v. Rural Telephone Service Company, Inc. where a phone book’s contents were copied.
The names and addresses of people were considered factual rather than expressive, and while the arrangement/selection/ organization could have been expressive, the plaintiff’s use of alphabetical arrangement was not creative.
This meant that the alleged infringer was primarily copying only factual information rather than original and creative expressions by the plaintiff.
Amount and Substantiality
This factor largely relies on the individual court’s interpretation of the use.
When analyzing the amount and substantiality, the court will look at how much of the copyrighted material was used.
It will also look at if the part of the copyrighted material used was substantial in the value of the copyrighted work.
Thus, the larger amount of copyrighted material used, the less likely it is fair use.
Further, the more substantial the portion of copyrighted material is to the inherent originality of the copyrighted material, the less likely it is fair use.
However, such cases are not always so cut and dry.
In some circumstances, the use of the entire copyrighted work can fall under fair use, because it is not substantial in the value of the copyrighted work.
As in the movie commentary example above, using an entire movie but providing commentary for the duration of the movie does not take away from the value of the movie on its own.
In other circumstances, the use of a minimal portion of a copyrighted material can be determined as not fair use because the selection of the copyrighted material used was at the “heart” of the value of the original work.
Effect of Use on the Market
This factor analyzes how much of an effect the use of the copyrighted material has on the copyright holder’s profits.
The court looks to what extent the unlicensed use of the copyrighted work harms the existing or future market for the copyright holder.
The court will look at if the copyright holder is losing, or has the potential to lose profits due to the unlicensed use.
They will also look at if the unlicensed use would cause substantial harm if it were to become widespread.
The Importance of Fair Use to Your Copyright
Whether the use of your copyrighted work falls under fair use can only be determined by a federal court.
It is always recommended that you bring the question of fair use to an attorney before deciding whether to bring a lawsuit.
However, if you want to evaluate the work yourself before deciding whether to bring it to an attorney, you can ask yourself the following questions that evaluate the use of your work using the four factors outlined above:
- Does the use of your copyrighted work transform your work in any way, by adding new expression or meaning? Or is it being used as part of academic scholarship?
- Can the nature of your work lead to a determination of fair use, such as if you wrote a biography or technical document, rather than a fictional story?
- Does the work in question copy a substantial part of your work, such that it steals from the value and meaning? Or does it use a large amount of your work?
- Has the infringing work taken away earnings you could have made? Or, does the infringing work have the potential to affect your earnings?
Just remember that if someone issues a DMCA takedown notice and you respond with a counter-notice that your use is a fair use, then the alleged copyright holder’s only remedy is to sue.
As demonstrated above, copyright holders have several rights when it comes to protecting their work.
Additionally, copyright holders also have a number of options in the event someone infringes on their copyright.
U.S. copyright law grants authors of original works legal protections with the purpose of furthering the progression of science, and useful arts.
Without copyright protection, and therefore the ability to profit off of original works, creators would be less inclined to share their work with the public.
The most important takeaways about copyright law are:
- To be able to legally enforce your copyright, you must register with the U.S. Copyright Office. The easy and relatively inexpensive copyright registration process will allow you to bring a suit in court. While it is not necessary to establish the ownership of a copyright, registration is a prerequisite to protect the rights afforded by copyright ownership in a court of law.
- Copyright protections differ from protections offered by other intellectual property laws. Depending on what you are trying to protect, a copyright may not be appropriate and you may benefit from a different type of legal protection. Trademarks, patents, and trade secrets are some of the intellectual property protections afforded by U.S. federal law.
- People may still use your copyrighted material without your permission if it falls under “fair use.” A copyright does not entirely prevent the public from using your work without asking or paying you. You can save a lot of time, and legal fees, by determining if someone’s use of your copyrighted work was legal.
Before selling your copyright, transferring it to another person, filing an infringement suit, or trying to settle the dispute alternatively, it is best to consult an attorney.
Copyright law is a great way to ensure that you get credited, and possibly compensated for your original work.
Registering your copyrightable work is the only way to ensure that you will benefit from the protections and rights that are available to all types of creators.
While the creative output of artists, musicians, authors, filmmakers, and computer programmers vastly differ, copyright law provides every kind of creator the opportunity to legally protect their hard work.