This purpose of this article is to provide general information to readers who may be considering copyrighting their books, articles, art, music, computer programs or other creative works, or who otherwise have an interest in the subject of copyrights.

When a client contacts me about protecting their copyright, if it is for a work being published in the United States of America, the first thing that I normally recommend is filing a copyright application with the Copyright Office in the Library of Congress in Washington, D.C. (across the Potomac River from my office in Alexandria, Virginia).  For this I need two physical copies of the work for deposit with the Library of Congress (or one digital copy for an electronic deposit), some background information about the work and its creator(s), the filing fee to be paid to the Copyright Office, and my attorney fee. 

The copies to be deposited must be of the best edition of the work.  Thus, if a work is published in a hardcover edition and a paperback edition, the hardcover edition must be deposited.  If a work is published in both a paper edition and a digital edition, the paper edition must be deposited.  If there is a digital supplement not included in the paper edition, then it must be printed out and submitted with the paper edition.  Several issues of a serial publication may be included in one copyright application, and deposited at one time.

Unlike in the case of patents or trademarks, a copyright search is generally not performed before filing a copyright application.  One reason for this is that it would not be practical to search the large number of prior copyrighted works that may be similar.  Another reason is that so long as the latter work was independently created, and it resembles the earlier work just by chance (not because it was copied from it), a valid copyright can be obtained on the latter work. 

A copyright registration will be essentially the copyright application, with any amendments made during the examination process.  You may find examples of copyright registrations on my website at swift.law.pro or you can look them up on the Library of Congress’ website at www.loc.gov/copyright.

When I began practicing copyright law, all copyright applications were filed on paper.  The paper had to be mailed or delivered to the Library of Congress.  Now, most copyright applications are filed electronically.  (The Copyright Office encourages electronic filing of copyright applications by charging higher fees for copyright applications that are filed on paper.)  Filing fees are paid when the application is filed, by credit or debit card, direct debit from a bank account, or from a deposit account with the Library of Congress.  (Paper filers may still pay by check or money order.)  An acknowledgment of filing is provided immediately upon electronic filing.  A paper deposit may be required to be mailed, even if the copyright application is filed electronically. 

After a copyright application is filed, it will be assigned to a copyright examiner.  He or she will review the application to see that it is in proper form, and that it pertains to copyrightable subject matter.  The Copyright Office will not, however, perform a search to see if the work is similar to a prior work.  If the copyright examiner sees a problem, he or she will write to the applicant’s representative (or the applicant, if pro se).  It is possible to contact the copyright examiner by telephone, but you will usually be kept on hold for a long time.  Unlike trademark applications, copyright applications are not published for opposition. 

Copyright applications are usually approved as filed.  They are only rarely rejected.  A copyright application may be rejected if it does not pertain to copyrightable subject matter.  For example, an application for a very simple design with little or no creativity could be rejected as not copyrightable. 

Copyright applications are not published before the copyrights are registered.  Copyright registrations are available on the Library of Congress website after the copyrights are registered.

A Certificate of Registration of a copyright is usually received in the mail several months after the copyright application is filed.  It may begin to take longer to receive a Certificate of Registration, because of the recent sequestration affecting the federal government as a whole. 

Unlike for patent attorneys, there is no special registration requirement for copyright attorneys. 

In the United States of America, the term of copyrights for works copyrighted since 1978 (when the “new” Copyright Act took effect) is generally as follows:  For published works for hire, ninety-five years after publication, or one hundred twenty years after creation, whichever expires first.  For published works that were not for hire, the life of the author plus seventy years.  Copyright terms are similar in most other countries.  Once the copyright term ends, the work becomes part of the public domain, and anyone can copy it without permission.

Under the Berne Convention, copyrights in one country will generally be recognized in other countries.  Most other countries do not have registration requirements, as does the United States. 

Copyright comes into existence once a work is fixed in a tangible form (under the U.S. Copyright Act).  Thus, one does not have to register the work to have a copyright to it.  However, in the United States, there are important advantages to registering the copyright.  To begin with, the copyright holder cannot sue anyone for copyright infringement until the copyright is registered.  No statutory damages can be awarded by a court for any infringement that took place before the effective date of the copyright application.  (Actual damages must be proven for any infringement that took place before the effective date of the copyright application.  It may be difficult to prove actual damages, which is why statutory damages are available.)  Attorneys’ fees can be awarded for willful infringement of a registered copyright.

The effective date of a copyright application is generally the date that it is received by the Copyright Office (including receipt of any required fees and deposits).  However, if a copyright application is filed before three months from the date of first publication of a work, then its effective date is retroactive to the date of first publication.

A copyright notice should be placed in a conspicuous place on any copyrighted work.  It must contain three elements:  The word “copyright”, the abbreviation “copr.”, or a C in a circle (“©”), the year of first publication, and the name of the author(s) (which may be a company in the case of a work for hire) or other owner of the copyright.  For example: © 2013 by John Doe.  This puts potential infringers on notice that it is a copyrighted work, so that they cannot claim to be innocent infringers.  It is not necessary to register the copyright before using the copyright notice.  A P in a circle may be substituted for the C in a circle for phonorecords (sound recordings).  The phrase “all rights reserved” is not required in most countries, but it does not hurt to include it (or other warnings). 

A copyright is infringed by exercising any exclusive right to the work without the permission of the copyright holder (subject to certain limitations).  The exclusive rights include: “(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works . . . [e.g. translations]; (3) to distribute copies . . . (4) . . . to perform the copyrighted work publicly; and (5) . . . to display the copyrighted work publicly.”  17 U.S.C. § 106.  Some exceptions include:

Fair use, which allows others to quote brief portions of a copyrighted work without permission.  Thus, someone writing a book review may use brief quotations from the book in the review.  The quotations must not be so extensive that they would make consumers less likely to buy the work.  A parody of a copyrighted work may be considered fair use.

Libraries and archives may make replacement copies. 

The owner of a copy may sell the copy.

Performances and displays by non-profit educational institutions.

Ephemeral recordings incidental to transmitting to the public a licensed performance or display.

Copies in Braille or audio recordings for the blind. 

Certain works (e.g., music recordings) are subject to a compulsory license, which allows radio and television stations to play them, subject to the payment of royalties that are set by the Copyright Royalty Tribunal.

Besides copyrights, two other forms of intellectual property protection that are administered by the U.S. Copyright Office are:

Mask work registrations, which are designs for integrated circuits, used in computers and other electronic devices.

Hull design registrations, which are only for the hulls of nautical vessels. 

Obviously, these special forms of registrations exist only because special interests lobbied Congress for them. 

As I mentioned in a previous article, copyrights and patents are provided for by the clause in the U.S. Constitution that states, “The Congress shall have Power . . . to Promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  (In the eighteenth century language of the Constitution, “Science” means knowledge in general, “useful Arts” means what we would today call “technology”, and “Discoveries” means “inventions”.  Thus, the words “Science”, “Authors” and “Writings” refer to copyrights, and the words “useful Arts”, “Inventors” and “Discoveries” refer to patents.  The Constitution does not actually contain the words patent or copyright, even though it provides for them.)

Because of this clause in the U.S. Constitution, copyrights are exclusively a federal matter.  (Before the new Copyright Act took effect in 1978, there were state common law copyrights to unpublished works.)  A suit for copyright infringement must be filed in a U.S. District Court (or the Court of Federal Claims, if against the federal government).  However, state courts can exercise jurisdiction over contract disputes involving copyrights, or the inheritance of copyrights.  “Life of the author plus seventy years” means that the author’s heirs or assigns will own the copyright for seventy years after the death of the author. 

U.S. Copyrights were originally only for a single fourteen-year term.  Congress later lengthened the term of copyrights to twenty-eight years, with the option of applying for a second twenty-eight year term when the first term expired.  Then, when the new Copyright Act took effect in 1978, copyright terms were made the life of the author plus fifty years (or seventy-five years for works for hire).  This was further extended to life of the author plus seventy years (or ninety-five years for works for hire) in the 1990’s.  The rationale for this last extension was to harmonize copyright terms in the United States with what they already were in Europe. 

Critics called this last extension the “Micky Mouse Protection Act”, because it prevented old Walt Disney movies from entering the public domain (where anyone could copy them legally).  You can guess who lobbied Congress for it.  (Perhaps they will be lobbying Congress for another extension of copyright terms in a few years.)  There was a lawsuit to have it declared unconstitutional, on the grounds that the Constitution says that copyrights are only to be for limited times.  However, the U.S. Supreme Court upheld it, because authors cannot live forever, and seventy or ninety-five years is still a limited time.

Many people believe that copyright terms are too long.  Perhaps life of the author or fifty years after publication (whichever ends first) would be sufficient to maximize economic incentives, because it seems unlikely that authors are really motivated by potential royalties received by their heirs as far in the future as current copyright terms.  Keeping works out of the public domain almost forever does impose economic costs on the rest of society.  Ironically, while Congress has been making copyright terms longer and longer, some have been calling for patent terms to be shortened. (At twenty years, they are already much shorter than copyright terms.)

A work is legally a work for hire only if it is either created by one or more employees of the copyright holder, or there if there is a contract stating that it is a work for hire, and it falls within one of certain enumerated categories of works in the Copyright Act.  The enumerated categories are: contributions to a collective work, motion pictures or other audiovisual works, instructional texts, tests, answer material for tests, and atlases.  17 U.S.C. § 101.  However, the author(s) can assign any copyright to another person (including a legal person, such as a corporation).  Whether or not a work is a work for hire affects the term of the copyright, as explained above. 

There is a provision in the Copyright Act that allows the author (if it is not a work for hire) to unilaterally terminate any license or assignment of the copyright thirty-five years (but not more than forty years) after it was made.  The rationale for this provision is that authors may have greatly underestimated the value of their works when they were created, and that this gives them an opportunity to negotiate a fairer agreement.  A notice of termination must be served at least two years in advance. 

Works created by the U.S. federal government cannot be copyrighted.  The rationale is that the taxpayers have already paid for them, and should not have to pay twice by being charged royalties.  (The federal government can hold copyrights transferred to it by assignment or bequest.)  State and local governments can copyright their works.  Building codes are copyrighted by private entities and licensed to local governments. 

The Library of Congress does not have room for all the deposits submitted with copyright applications, so they are not all kept.  If it is possible to submit a digital deposit on-line, it may have a better chance of being retained. 

Copyright protects the form in which an idea is expressed, not the idea itself.  A patent may give its owner the exclusive right to an idea (so long as it fits within the statutory class of ideas that can be patented).  Copyrights give weaker exclusive rights than patents, though they last much longer.  Copyrights are much easier and less expensive to obtain than patents, and somewhat easier to enforce in the courts. 

Copyrights and trademarks differ from patents in that there are criminal penalties for willfully infringing them.  (Criminal penalties are not available for patents because their complexity often makes it difficult to determine if they are being infringed.)  Copyright infringement can be subject to criminal penalties only if it is for the purpose of commercial advantage or private financial gain.  A court may order infringing copies to be destroyed.  It is also a criminal offense to place a fraudulent copyright notice, or to fraudulently remove a copyright notice.  It is a crime to make a false representation of a material fact in a copyright application.  17 U.S.C. § 506.