Intellectual Property Newsletter
Notice and Registration of Copyrighted Works
Use of a copyright notice is not required under Federal law to protect a work. However, using a notice is a good idea in many circumstances since it informs the public that the work is protected by copyright and identifies the copyright owner and date of first publication. The use of a notice will keep the defendant in an infringement case from claiming that he did not know the copyright holder’s work was protected. For a copyright owner to use the notice, he does not need the permission of the Copyright Office, nor does he need to register the work.
Form of the Notice
The Copyright Office has rules for using the notice. For visually perceptible copies, the notice must contain the following:
- ©, “Copyright,” or “Copr.”;
- The year of first publication; and
- The name of the owner of the copyright.
For example: © 2008 John Doe
Care should be used with the “©” symbol. It is not used for audio recordings fixed in phonorecords. For phonorecords and sound recordings, the letter “P” in a circle (““) is used instead. Other forms of notice exist, but you should seek legal advice before attempting to use them.
The copyright notice should be affixed to the copy, the phonorecord or the container or label of the phonorecord. It should be placed so that it gives “reasonable notice of the claim of copyright.” Further information on the use of copyright notices may be found in Circular 3 issued by the Copyright office.
Notice is optional for all works published after March 1, 1989. However, notice is important for works published before this date, for these works risk the loss of copyright protection if the copyright notice is missing or defective. The law in this highly litigated area is complex, so you should consult an attorney for further advice and information.
Registration is different than notice. Notice is merely the mark which notifies the public of the copyright. Registration, on the other hand, is the process by which a work is recorded with the United States Copyright Office. Although Federal law does not require registration for a work to be protected by copyright, registration does offer several advantages. These advantages include the following:
- Registration gives the public recorded notice that a work is protected by copyright.
- Except for “moral rights” actions, registration is required by Federal law before an infringement action may be filed.
- Registration can help establish the validity of the copyright in an infringement action.
- Registration within three months after publication or registration prior to the infringement entitles the Plaintiff to statutory damages and attorney’s fees not available to non-registered works in a Federal infringement action.
Before 1978, Federal law required that the work be registered before publication. However, a work may now be registered anytime within the duration of the copyright.
To register a work with the Copyright office, three items must be submitted in the same envelope or package to the Copyright Office: the application; the application fee; and the required deposit, as discussed below. An application may be filed by the author of the work, the owner of exclusive rights, or the duly authorized agent of one of the above. The registration is effective the date the Copyright Office receives the required three items.
The Application Form
Different forms must be used to register depending on the category of the work. The available categories include the following:
- literary work: books, manuscripts, online works, poetry, or other texts
- visual arts work: pictorial, graphic, sculptural, or architectural works
- performing arts work: musical works, dramatic works, scripts, pantomimes, choreography, motion pictures, or other audiovisual works
- sound recording: recordings of music, drama, or lectures
- serial/periodical: periodicals, newspapers, magazines, or other similar works
The copyright office has provided separate forms for copyright renewal, for corrections and amplifications, and for group contributions to periodicals.
The Application Fee
The current basic fee is $45, but make sure you check with the copyright office or an attorney specializing in copyright law because the fee is subject to change.
Generally two complete copies or phonorecords of the work to be registered must be included with the application. However, this requirement can vary under certain circumstances. For example, only one copy is needed for a work that is first published outside the United States. Motion pictures, computer programs, or any work in a CD-ROM format have special deposit requirements.
Preregistration is a relatively new procedure offered by the Copyright Office to protect works that have a “history of pre-release infringement.” Preregistration is used when a copyright owner needs to sue for infringement while a work is still being prepared for commercial release. To qualify for preregistration, a work must meet the following requirements:
- being prepared for commercial distribution
- fall with certain class of works
The following classes of works are eligible for preregistration:
- motion pictures
- sound recordings
- musical compositions
- literary works being prepared for publication in book form
- computer programs (which may include videogames)
- advertising or marketing photographs
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