Copyright: Registration Pt. 1

by Howie Cockrill, Esq.

To register, or not to register?

That is the question for most musicians, songwriters, authors, filmmakers and other creators of copyrightable content.

The simple answer is “yes.”

Leaving off there, though, would do a disservice to inquisitive minds scouring the  internet for deeper answers to this most basic of copyright issues.

Hopefully the following FAQ will guide you towards registration enlightenment.

What happens if I don’t register my creative work?

The 1976 Copyright Act grants automatic copyright protection to any work meeting certain criteria. 

This means your work may be protected with a certain basic level of copyright from the moment it is created, without you having to fill out any forms. 

(Note, however, that this automatic protection does not give you all the benefits that registering your copyright gives you.)

To get this automatic copyright protection, there are 3 basic requirements:

1.    copyrightable subject matter
2.    fixed in a tangible medium
3.    original work of authorship

COPYRIGHTABLE SUBJECT MATTER

This simply means that your work must fall into certain categories in order to be copyrightable.

Copyrightable subject matter includes books, periodicals, sound recordings, lyrics & musical compositions, film, tapes, software, dramatic works, pantomimes, choreographic works, pictorial/graphic/sculptural works, audio-visual works and architectural works, among others. 

(Note – This list is not exhaustive.)

Things that may not be copyrightable subject matter include titles, names, short phrases, slogans and logos, which generally fall into the realm of trademark protection.

FIXED IN A TANGIBLE MEDIUM

This simply means that the work cannot just be some brilliant idea floating around in your head.  It must actually be placed in some form that can be perceived or reproduced. 

ORIGINALITY

The work must also be original (ie not copied) and must involve a certain (though small) level of creativity.  For instance, facts are typically not copyrightable. 

The following are some examples from the Copyright Office website to put all of this into context:

Example #1:

Suppose Hendrix writes a poem on a parchment and sells it to Dylan. Dylan may now own the parchment with the poem - but Hendrix still owns the copyright on the poem.

If Dylan puts together a collection of poems, including Hendrix’s poem, and sells the collection, Dylan may be infringing Hendrix’s rights under copyright law.

This is true even though Dylan can register the collection as his own copyrighted work. The arrangement and selection of the individual poems within the collection may be copyrightable.

Example #2:

Bono is in a rock band and writes the lyrics to a song, while another band member Larry, writes the score. The band then plays and records the song.

There are three separate copyrights - the lyrics, the score, and the recorded song.

Example #3:

If Clem takes public census information pertaining to Boston and assembles a fact booklet about Boston, the selection and arrangement of the facts is copyrightable.

The facts themselves are not, (although there is some legislation pending in this area) and someone else is free to take those same facts and assemble them differently.

Example #4:

As a software guru, Virgil codes a novel algorithm for processing data on the Internet.

The literal code and the expression of the work qualify for copyright protection.

The functionality of the software may be protectable by patent law if it meets the patent requirements, but would not get protection from copyright.

What does it mean to “register” a copyright?

The underlying concept behind copyright registration is simply "notification."  An artist notifies the federal government (U.S. Copyright Office) through a registration process that he or she has created a copyrightable work.

The Copyright Office then keeps a record of that registration on file. All copyright registrations since 1978 are now searchable online at www.copyright.gov.

Why should I register my works with the Copyright Office?

In light of the fact that copyright protection exists automatically in many creative works, what is the point of registering the copyright?

Another way to ask this question is, “Why should I notify the Copyright Office of my work?”

The primary purpose of notifying the Copyright Office of your work has to do with a legal term called “constructive notice.” 

When you put someone on “actual” notice – you are actually and directly giving them information about something, either in person, by phone, by email, by mail, etc.

When you put someone on “constructive” notice – you don’t directly give them any information.  What you are doing is putting the information in a place where they can retrieve it themselves if they want to. 
Thus, whether or not they actually get the information, for purposes of the law – they are presumed to have it. 

This is how copyright registration works.  When the Copyright Office files your registration at the Library of Congress and puts it online, that information is available to anyone willing to do a simple search.

Because this information is available to everyone and because everyone is presumed to know about your registration, this means that if they infringe your work by copying it, distributing it, altering it, performing it or displaying it – in most cases, they cannot use the excuse, “I didn’t know.” 

In fact, according to the law – they did know (even if they really didn’t).  If they did know about your work (because it was registered) and they infringed it anyway, then it often (though not always) follows that they intended to infringe your work.

Intent is an important factor in copyright infringement cases.  If someone intentionally infringes a copyrighted work, the law increases the punishment against that person. 

In fact, according to Section 506(a) of the Copyright Act, if someone infringes a copyright willfully and for purposes of commercial advantage or private gain," then that is deemed criminal copyright infringement.

So – why would you want to register your work with the Copyright Office?

Because when it is registered, everyone in America is put on constructive notice about you and your copyright registration.  If others infringe your work anyway, they could be deemed “willful” infringers and the punishments against them will be ramped up.

Stay tuned for Registration:  Part 2, where I discuss:

• specific benefits of copyright registration
• how to register a copyright