This column was originally published in the Grand Rapids Business Journal on December 19, 2014 and is republished with permission.
“FBI Anti-Piracy Warning: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.”
We have all seen this warning, transposed over a stark blue or red screen, at the start of every movie we watch at home.
On its face, it sounds pretty serious. However, it has been a long time since I’ve read about a major copyright infringement bust in the Grand Rapids Business Journal or New York Times. Particularly in the digital era, with the proliferation of information published online and the ease by which potential pirates can now copy information, civil protection of copyrights is more important than ever.
A common misunderstanding is that you must register your materials for copyright protection with the U.S. Copyright Office in order to have a copyright. This is incorrect. A copyright is automatically secured when a work is created. A work is “created” when it is fixed in a material format — such as a book, film, video tape, or phonorecord format, such as a compact disc — for the first time.
Copyright holders have a number of legal rights under the law. In general, copyright holders have the exclusive right to do, and authorize others to do, the following:
- Reproduce or copy the work.
- Prepare derivative works based upon the copyrighted work.
- Distribute copies of the work to the public by sale or rent.
- Perform the work publicly.
- Display the work publicly.
Not surprisingly, there are exceptions to these rights. The most noteworthy is the “fair use” doctrine. Generally speaking, non-commercial use of copyrighted material that does not diminish the copyright owner’s ability to make money from the work is considered “fair use.” Common examples of fair use include using a copyrighted work for teaching or scholarships, criticism or comments, news reporting, or parody. However, there is no bright line test for “fair use,” and in some circumstances non-commercial use might not be considered “fair use” if it is extensive and diminishes the copyright owner’s ability to make money from the work.
In addition, there are some circumstances in which copyright holders must allow others to use their copyrighted material but are entitled to a royalty payment for use of their work, commonly referred to as a compulsory license. Examples include non-dramatic musical compositions, public broadcasting, re-transmission by cable systems, and digital audio transmission such as Internet radio.
Copyright protects “original works of authorship” that are fixed in a tangible form of expression that can be communicated with the aid of a machine or device. Examples of materials that can be copyrighted include the following: literary works, musical works, dramatic works, pictorial and graphic works, motion pictures and other audio/visual materials, sound recordings, architectural works, and even pantomimes.
Although the use of a copyright notice is not required under the law, it can help deter pirating of copyrighted materials by helping to establish the author’s intent to protect the copyright. Providing notice that a work is copyrighted is easy to do. The use of a copyright notice does not require permission from, or registration with, the Copyright Office. You can provide notice that you are claiming a copyright on a work by including the following three elements on your materials: the copyright symbol, the word “copyright,” or the abbreviation copr.; the year of first publication of the work; the name of the owner of the copyright of the work. Example: ©2014 John Doe.
Although federal registration of a copyright is not required, there are a number of advantages to registering one’s materials for copyright protection with the federal Copyright Office. Among the most significant advantages are the following:
- Registration creates a public record of the copyright claim.
- Before a copyright infringement lawsuit may be filed in court, federal registration is necessary.
- If the copyright registration is made within five years of publication, registration creates a rebuttable presumption in court that the copyright is valid.
- Registration may allow the registrant to recover attorneys’ fees in a lawsuit, in addition to statutory damages, which may include exemplary (punitive) damages in cases of willful infringement.
- Registration allows the copyright owner to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
In most circumstances, filing a copyright registration application is simple and can be done by a layperson. The Copyright Office now has online copyright registration available through its website, copyright.gov. The filing fee is between $35 and $55. You must file an archive copy of the material to be copyrighted with your application. Copyright registration applications are typically processed in less than a year.
What if you created the work while working for your employer? Unlike patents, which are filed in the name of the inventor, works created by an employee are considered to have been authored by the employer for copyright purposes. So long as the work was prepared by the employee within the scope of employment or was specially ordered or commissioned for use, the employer, or the person who contracted for creation of the work, is deemed the author and copyright holder for the work.
What do you do if you think your copyright is being infringed? This is where the advice of an attorney is critical. There are a number of considerations to be balanced in evaluating whether your copyright is being infringed and, if so, what is the best approach to addressing the issue. There are several defenses to copyright infringement, such as the “fair use” exception discussed earlier. Moreover, copyright infringement lawsuits can be expensive and time-consuming, such that addressing the issue through means other than litigation often makes sense. The determination of whether a copyright is being infringed and how to address the issue should be considered in consultation with experienced legal counsel on a case-by-case basis.