Copyrights are designed to protect artistic works, i.e., works that have no utility. Musical scores, sound recordings, poems, books, paintings, and sculptures may be copyrighted, of course, but more mundane works such as instruction brochures, sales brochures, and the like may also be copyrighted as well. The only requirement is that the work contain at least a nominal amount of creativity. Searches are not performed prior to the filing of a copyright application because if someone else has already written the song or book you wrote, it makes no difference to the Copyright Office as long as you did not copy from the earlier artist.
The 90 Day Rule
It makes good sense to register a copyright within ninety days of publication of a work; any work so registered will be deemed registered prior to infringement, even if infringement begins before the registration was accomplished. A work registered more than ninety days after publication, and after infringement begins is still protectable, but the measure of damages is actual damages, and the artist must bear his or her own legal fees. A lawsuit to enforce a copyright on a work that was registered within ninety days of publication or more than ninety days from said date but prior to the onset of infringement may result in an award of statutory damages and attorneys’ fees. Actual damages are hard to quantify, but statutory damages are substantial and need not be quantified. Prompt registration is therefore highly desirable.
The International Copyright Notice
The International Copyright Notice should be placed on all works as soon as they are created; there is no need to file a copyright application before applying such Notice. Thus, if you draw something catchy on a napkin in a restaurant, you can put “© 1996 John Jones” on the napkin right away and mail the napkin, complete with the International Copyright Notice, to the Copyright Office as an attachment to a Copyright application. Actually, you would mail in a copy or photograph of the napkin as the attachment. If your sketch has not been published as of the date you mail in your copyright application, only one copy of the work will be attached to the application. If the work is published, then two copies of it must be attached to the application, and the date and nation of the first publication must be revealed.
More Details, and a Big Surprise
Unlike a patent application, a copyright application is a form that can be filled out without the assistance of a lawyer, in most cases. However, there are a number of pitfalls into which a novice can descend, especially if the work is a compilation or a derivation from an earlier work. “Work for hire” issues can also arise relating to ownership if the artist was employed at the time the work was created, or if a contractual relationship exists between the artist and someone who has commissioned the work. Suppose you’re a famous photographer and someone hires you to fly to Washington, D.C., to take a picture of the Washington monument for them.
After beseeching them to get a life, you agree to take the picture because you need the work. They pay your roundtrip airfare, put you up in a fancy hotel for a week because you tell them you need to wait for just the right weather and just the right lighting before you can take a picture worth having, they buy you new camera equipment, pay for the film, and give you a thousand bucks a day for your professional services. You then take the picture at the appropriate moment, develop it, and note on the finished picture that you are the copyright owner (by placing the International Copyright Notice, including the ©, the year and your name). You deliver the picture to the guy who picked up the enormous tab for it, and he explodes. “I paid a zillion bucks to have this picture taken! And you put your copyright notice on it! I own the copyright to that picture; that’s why I hired you and paid all of your expenses!”
Well, here’s the big surprise: In the absence of an agreement in writing to the contrary, you the photographer own all the rights to that picture because you took it. It matters not who paid for it. You can even prevent the guy who paid for it from making copies of it. He gets the original photo, and nothing more. You own the negative and can make and sell as many copies as you like. The moral of this story is that if you hire someone (who is not a regular employee of yours) to write a story for you, to write a song for you, to take a picture for you, to design a brochure for you, or whatever, put it in writing that the artist will assign the copyright in the finished work to you when it has been completed.
I Don’t Need a Patent – I’ll Just Copyright My Idea
Every patent lawyer has heard this one: “I’ll just write my idea down and copyright it. After all, a copyright is a poor man’s patent.” It’s true that if you write your idea down and copyright what you’ve written, you can prevent others from making photostatic copies of what you’ve written down. In other words, the copyright laws protect against the unauthorized copying of your physical writings. However, the idea expressed in the writing is not protected. Thus, someone who reads and understands your writing can go out and make the invention you’ve described and use it and sell it, all without violating your copyright.
What Scope of Protection Does a Copyright Give Me?
If someone who has had the opportunity to copy your work thereafter makes a “substantially similar” version of it, that person can be held liable for copyright infringement. It’s an old wives tale that a copyright is avoided if three changes are made, or if ten changes are made, or if the work is changed 10%, and so on. There is no scientific, quantifiable amount or degree of changes that must be made to avoid a charge of copyright infringement. If the accused work is substantially similar to the protected work, infringement can be found if the opportunity to copy existed, even if thousands of changes were made. If Shakespeare and his copyright in Romeo and Juliet had not expired when West Side Story was written, he could’ve sued the writers of that 1950’s classic for copyright infringement, and won. Of course, West Side Story was a highly professional, scholarly updating and paraphrasing of the Bard’s play. The point is that a copyrighted work has a reasonably broad scope of protection, whether it be a song, a writing, or whatever. No one can “get around” a copyrighted work just by making changes here and there, as is popularly believed. A copyright is a valuable piece of property worth securing and protecting.
Unlike restrictions on the federal trademark registration symbol ®, as soon as creative expression is reduced to tangible form copyright exists. Typically, you can mark you book, software, etc… with the copyright symbol, the year of publication, the claimant and “all rights reserved.” For example:
© 2020, Smith & Hopen, All Rights Reserved.
However, if you want to recover: (1) statutory damages; (2) court costs; and (3) attorney fees, you need to register within three (3) months of publication or before actual infringement. Otherwise, you will likely be arguing for “lost profits” which are difficult and costly to quantify in court.