Is Copyrighting Really Necessary?

by Grygor Scott

Federal copyright laws protect original works of authorship. Copyright is available for many types of works, ranging from books and songs to architectural designs and computer programs. Copyrights protect both published and unpublished works. Authors have the option of registering copyrights with the federal government. Whether registering a work’s copyright is necessary depends on several factors.

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Copyright Protections

Copyright holders have certain property rights with respect to their works. They can prevent others from reproducing or distributing copies of their works, performing or displaying their works and creating derivative works. If a party uses copyrighted material without the copyright holder’s permission, the copyright holder may sue the party to stop the infringement. Under certain circumstances, the copyright holder may also be awarded compensation for losses that resulted from the infringement.

Securing a Copyright

Unlike patents and trademarks, copyrights do not require registration. A creator of an original work of authorship secures copyright protection the moment she creates the work and fixes it in a tangible form. A work is fixed in a tangible form if a person can observe it either directly or with the assistance of a device or machine. A copyright’s term begins when the work is created and fixed, and, in most cases, it lasts for the life of the author plus 70 years.

Copyright Registration

Federal laws have established a copyright registration system. Registration provides a public record of the basic elements of a particular copyright, such as the work's author, title and year of creation or publication. To register a copyright, a creator of an original work fills out a registration form, pays a nominal fee and sends the U.S. Copyright Office copies of the work.

Registration Benefits

Copyright registration provides three major benefits. Registering a copyright makes it easier for a copyright holder to stop infringement and recover damages from an infringer. Copyright laws require a copyright holder to have a registered copyright before she can file a lawsuit in federal court for copyright infringement. Registration also creates a legal presumption that the work’s copyright is valid. This shifts the burden of proof from the copyright holder to the alleged infringer. Thus, a defendant in an infringement lawsuit would have the burden to prove that the plaintiff’s registered copyright is not valid. Finally, if a jury finds that a registered work has been infringed and the infringement took place after registration, the copyright holder may recover attorney’s fees and up to $150,000 in damages without having to prove that the infringement caused monetary harm. Proving how much infringement actually cost a copyright holder can be difficult.

Decision

Determining whether the time, effort and expense of copyright registration are worthwhile depends on the nature of the work. Factors to consider include whether the work will be published, how likely it is that someone will infringe the copyright and the economic impact of an infringement. Because registration has a low cost and is relatively easy, it usually makes sense for most published or commercially viable works. Registration may not be necessary for works that have limited commercial potential or present little risk of infringement.