Part 2 of a series on U.S. Copyright Law.
A copyright is a form of intellectual property. For more on the basics, see Part 1, “What is copyright? And what can I copyright?”
WHAT ARE THE COPYRIGHT RIGHTS?
As discussed in part 1, a copyright comes with certain rights that you hold as the owner of the copyrighted work.
To understand what the copyright rights are, it is helpful to understand the shortfalls of the regular rules of property when it comes to artistic, intellectual property.
Consider a book and the copies of that book. If an author writes a book, under the normal rules of property rights, that artist owns the exact copy of that book the author just created. This means the paper, the binding, etc. The normal rules of property rights do not stop someone else from copying that book, printing tons of copies, and making money selling those copies. This is an example of a problem copyright law aims to solve. Copyright law allows the author to control the copying, reproduction, and distribution of his or her book.
Another potential problem is what copyright law refers to as “derivative works”. If an artist paints a painting that prominently features a man holding a pitchfork and a stern woman standing to his side, the artist, under the normal rules of property rights, owns an exact copy of that painting. This means the paint, the canvas, etc. But the normal rules of property rights do not stop someone else from copying that painting and putting a Mickey Mouse Hat on the man holding a pitchfork and then making money selling that new work based on the popularity of the previous work. This is another example of a problem that copyright aims to solve. Copyright aims to allow the author to control the creation of derivative works, or works primarily based on the original copyrighted work.
Yet another example is context. If a musician writes and records a song, that musician owns that song, under the normal rules of property rights. But the normal rules of property rights do not stop someone with whom the musician disagrees, for example a politician, from using that song as their campaign theme song. This is another example of a problem copyright law aims to solve. Copyright law allows the musician in this example to control how, when, where, and under what circumstances his or her song is used.
These examples only scratch the surface when it comes to the unique challenges that stem from artistic, intellectual property.
Nevertheless, to solve problems like those in the examples, copyright grants creators 6 exclusive rights. Specifically:
(1) to reproduce the copyrighted work in copies or phonorecords [defined as an object such as a CD from which sounds can be perceived];
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
17 U.S.C. § 106, available HERE.
The above copyright rights are exclusive, meaning only the copyright owner has the rights. For example, only the copyright owner can authorize displaying the painting at an art gallery. Additionally, only the copyright owner can make copies of the painting and sell those copies. If anyone breaches any right that is exclusive to you, that act is called “copyright infringement”.
Thanks to copyright law, the problems discussed in the examples, and many more are solved. Arguably, some problems are also unaddressed or over addressed to the point that there are new problems created. Regardless, copyright law is the effort to address the problems.
DO I NEED TO REGISTER MY COPYRIGHT?
What is registration? And do you need to do it? Registration with the U.S. Copyright Office is not required for ownership of a copyright, but is required, among other things, to take full advantage of the enforcement of your copyright rights. For example, if it turns out that someone has copied your painting, and is selling those copies, you must register your work before you can sue for copyright infringement. 17 U.S.C. § 411, available HERE.
Registration involves submitting an application to the U.S. Copyright office for approval. The entire process can be done online, HERE. The Copyright Office divides all copyright-able works into the following categories:
- Literary Works
- Performing Arts
- Visual Arts
- Other Digital Content
- Motion Pictures
- Photographs
Each type of work has its own unique application. Generally speaking, what is required for registration is a completed, correct application, some sort of copy of the work itself (usually 2 copies), and a filing fee.
Time-wise, the options for registration include standard track, which can take over 6 months, and “special handling” which can sometimes take as little as 2 weeks. Take a look at U.S. Circ. 10 HERE. Once the Copyright Office reviews and approves the application, the Copyright Office will issue a certificate of registration backdated to the date of application. At that point, the copyright is registered. In Florida, and in the remainder of the 11th Circuit, that certificate is required to institute a lawsuit based on a copyright infringement.
Interestingly, you may register your work years after creation and that will not affect the fact that you created the work earlier and already own the copyright. Making the determination, however, of when and if to register, or even to pre-register, is fact dependent. To learn more about if you have a copyright and whether and when you should register, you should reach out to a knowledgeable and experienced intellectual property attorney.
Zachary W. Lombardo, Esq. at Woodward, Pires & Lombardo has experience in copyright law matters. If you find yourself needing assistance in this area, please contact a lawyer knowledgeable in copyright law to discuss your matter