The basics of copyright protection
by M. Scott Boone
Copyright protection is the area of the law about which I most frequently get questions from authors and self-publishers. I want to go over just two basics in this post – how an author gets copyright protection and whether they need to register.
How do I get Copyright protection?
You are already getting copyright protection. The Berne Convention requires member countries to grant copyright automatically upon creation of the work without any formalities such as notice or registration. Thus, the 166 countries (167 if we count the Holy See) that are signatories to the convention must grant copyright protection upon creation of the work.
Let’s look at the standard in the United States. The requirements for Canada and most other countries do not differ in substance even if the language used is different.
In the United States, the Copyright Act of 1976 states that
“Copyright protection subsists … 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.”
The key language is “fixed in any tangible medium of expression”. Written longhand on a scrap of paper? Fixed in a tangible medium of expression. Typed into a computer? Fixed in a tangible medium of expression. Dictated into a voice recorder? Fixed in a tangible medium of expression. In each example, the statutory fixation requirements are met.
What would not count as fixed in a tangible medium of expression? A work that existed only in the author’s memory or a work that has only been conveyed orally without any recording or other fixation.
So, pretty much whatever you are already doing as an author is getting you copyright protection, whether you are writing longhand, typing into a word processor, or dictating your work.
Do I need to register my work with the Copyright Office?
The short answer is that you do not have to register your work, but if you ever want to enforce your copyright in a US court, then registering your work in a timely fashion can be crucial.
The US does not require registration to obtain protection; however, the US still wants authors to register. So, it provides strong incentives for registration, and those incentives can make all the difference in whether it is financially practical for you to enforce your rights.
If you register your work in a timely fashion, and if you are successful in proving infringement of your copyright, the statute says you can receive statutory damages and attorneys’ fees. Being able to rely on statutory damages means that you do not have to prove how much you were harmed; instead, the court can just assign a dollar amount per work. The starting range is $750 to $30,000 per work infringed. If the infringement was willful, it can be as high as $200,000 per work.
Making attorneys’ fees available means that, if you prevail, the other side has to pay the fees for your attorneys. This can be even more important than statutory damages. The amount you would have to pay in attorneys’ fees to litigate a copyright infringement suit will certainly reach mid-five figures and perhaps even low six figures. That’s why I say that having registered in a timely fashion can be so important in the decision to try to enforce your rights. Without attorneys’ fees being available, it may not be worth it for you to pursue the action, even if it is a slam-dunk win, if the ultimate damages you would receive would be less than what you would have to pay your attorneys.
So what is “in a timely fashion”? In order to be able to take advantage of the provisions providing statutory damages and attorneys’ fees, you need to register your work either before the infringement begins or within three months of first publication. The situation is a bit different if the infringement begins before you publish the work, but that is not a situation often faced by authors, particularly self-publishers.
You have copyright protection in your novel, short story, or other work of authorship as soon as you fix it, but in the US at least, registration can supply significant advantages if you ever need to sue anyone to enforce your copyright.
If you think you will ever want to enforce your copyright rights in a US court, then you should register your work with the US Copyright Office in a timely fashion – either before the infringement begins or within three months of publication.
About the Author
M. Scott Boone is an attorney and law professor who teaches at Atlanta’s John Marshall Law School. He has long focused on issues that affect authors and artists. He blogs about legal issues for writers at www.writerinlaw.com.