Advice (FWIW): Copyright Registration

In addition to being an agent, I am a lawyer. I was a lawyer first, actually. And before I was a publishing lawyer, I was a tax lawyer. At a huge corporate firm. (Really!) Now my practice covers most areas of intellectual property law, including trademarks and copyright, publishing agreements, and entertainment law. It is a nice complement to being an agent, as I can spot certain problems in advance (such as: “No, you can not use the name of the Senator with whom you had an affair in your memoir, lest you want an invasion of privacy suit” — true story). I can also advise writers on the ins and outs of copyright.

Most people probably know that if you create a work of art, you own the rights to that art — and, specifically, the right to make money off that art. What is confusing, however, is what “copyrighting a work” means, what actually does for you, and how to do it.

In prior years, publication with notice (the “(c)” symbol) was mandatory for a writer secure copyright and thus to assert any copyright ownership. Now, your copyright is extant as soon as you put pen to paper or record a note. When you “copyright a work”, you are not bestowing copyright on it because the copyright is inherent in it. You have copyright to your work even if you don’t register. If someone steals your work you can still sue them for actual damages (meaning, how much money you lost and how much money they made off your work). But by registering the copyright to your work, if you sue for infringement you may also be eligible for statutory damages and attorneys’ fees.

So why do we still put a copyright (c) symbol on the things? The copyright symbol simply puts people on notice so that they cannot in their defense claim inadvertent infringement. If you don’t have it, your work is still protected — although it used to be required for protection, and this is the source of some confusion.

OK, so then why do you need to register with the US Copyright Office at all? Certain monetary damages — attorney’s fees and statutory damages — that you might be owed because of someone else’s infringement accrue only from the date it is formally registered. I have seen artists whose work was not properly registered lose out on years of potential damages because they only properly register the work with the copyright office when they first learn of the infringement.

I would argue that in this digital age when material can be disseminated so quickly and widely, it is more important to formally register your work with the U.S. Copyright office. If you publish a book, the publisher will do that for you — it is (or should be!) a part of every publishing contract. (A publishing contract is in essence a copyright license from you, the copyright owner, to the Publisher, allowing them to distribute and make money off your work.) But if you are self-publishing or you have an unpublished work that you are circulating widely, it might be a good idea to go on to the U.S. Copyright Office website and register the work, which you can do electronically (for $35).

What if you have a blog? First and foremost, you should have a clear copyright notice at the bottom of every page. You’ll see on this blog that I do not, but that’s because I can’t figure out how to do it! (Can someone help me?) If I did, it would look like this: Copyright (c) Kathryn Beaumont, 2013. Remember, this doesn’t mean the copyright is registered, per se, it just means that I am putting my readers on notice that they can’t claim that they didn’t know this was my original work. I would also add a Terms of Use page somewhere, which states that if people are reading your blog, then they agree not to x, y, or z (steal your work? Make mean comments? Post comments or work that is copyrighted by others? Steal your photos? Whatever you want…)

Should you also register your blog with the U.S. Copyright Office? If your blog is widely read, has had copyright infringers poach from it in the past, or you plan to put it into a book someday, I’d recommend it. Unfortunately the Copyright Office is not clear whether blog postings are that exist online and nowhere else are considered “publications” and, thus, what sort of protection they need to have to allow you to sue and be awarded certain damages. The thinking for some time had been that you were eligible for all damages if you registered the entire contents of your blog and then updated it subsequently every three months — because you have three months after publication to register a work for purposes of statutory damages and attorney’s fees. But if the Copyright Office won’t comment on whether a blog is “published” for these purposes, then the three-month window is sort of arbitrary. With an unpublished work, you can’t sue until it is registered.

So, basically, you can register the contents of your blog once, and then however often makes you feel comfortable (or you want to pay $35) register the chunk of posts since your last registration as a new work.  You would have to create a new registration for the updates as opposed to being allowed to register them as some sort of new derivative of the overall blog registration.

Why should I care about this? I just want to write! Many artists create because they just have to — it’s an innate calling (“Painting is like breathing,” etc.), and thus don’t always think about their work as “property” or as having monetary value. But it does! There is always potential value, so it’s wise to protect it so that when you finally realize that value — even if you think it will never happen — it’s not too late.

NB: What I didn’t cover: copyright damages, what constitutes infringement, or Fair Use. I welcome all thoughts and experiences you have had with copyright registration — particularly blogs. But if you have specific questions as they relate to your own work, I can’t answer them here.

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2 Comments

September 12, 2013 · 4:34 pm

2 responses to “Advice (FWIW): Copyright Registration

  1. Fascinating. I never even thought of this! Thank you. This was hugely interesting in terms of what an artist “owns.”

  2. Thanks for the succinct layman’s speak on this topic. A lot of creatives don’t know enough about these issues. As to your copyright statement? I can maybe help you with that, based on how you appear to be running WordPress.

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