Wherefore Thou Art #50
THE MORE THE MERRIER

If you've been reading this column for a while, you already know the following, I hope:

  1. You get copyright ownership automatically upon the creation of your work in some sort of tangible form;
  2. It's not mandatory to put that "c"-in-a-circle notice on your work, but it's a good idea;
  3. Registering your copyright with the federal Copyright Office gives you added protections for your works, like the right to go to federal court if someone infringes your work.
  4. If you are registered with the Copyright Office prior to an infringement (or within three months after your publication of a work), you are entitled to statutory damages of up to $150,000 for each infringement, as well as attorneys' fees after you win your lawsuit.

So if you have copies of your work going out into the world (like if you're selling CDs of your music, are publishing books or articles, selling prints of your art work, or are putting anything on the web), you should really consider registering your copyrights.

The power of having a registration in place can't be overstated. I recently had a client come in with an open and shut case of infringement. She'd been brazenly ripped off by a huge media company. She'd complained to the company early on and the big media company stopped its infringing activity. She still felt violated (and, well, she had been violated) and wanted to pursue damages. She had registered her work with the Copyright Office before taking it to market, and long before the infringement occurred. If she didn't have the registration, I wouldn't have taken the case. No attorney would have. We would have been limited to her actual economic damages, which were relatively small, because she was vigilant and was able to stop the infringement early on. It would have cost her much more to bring and prove her case that she would have been able to recover, even on the best day. But because she had the copyright registered, taking the case was a relative no-brainer. She doesn't have to prove actual damages, and could get a significant damage recovery, and the longer the Big Media company fights the case, the higher will be the award of attorneys' fees at the conclusion of the case. She's sitting pretty, because she had the wherewithal to register her copyright.

The mechanics of registration are pretty straightforward and you can do it yourself. Everything you need in terms of forms and instructions can be found at the Copyright Office's website at www.copyright.gov or at your local library. Registration costs $45, and the Copyright Office is testing a system to allow for online registrations that will cost $35. The online system should be up and running by the end of the summer. And no, mailing yourself a copy of your work, the so-called "Poor Man's Copyright" isn't a substitute for registration, no matter what you've heard. Mailing your self something is nice way to fill your mailbox, but that's about it.

Now, you might be thinking "Sheesh, at $45 a pop this is gonna get expensive." If you're a prolific artist, yes it can. But there are a couple of things you can do that can slash your registration costs dramatically.

If you package your work in groups, like a CD of numerous songs, or a book of short stories, you can register the collection, and each individual work will receive protection as if they were each registered individually. Just give the collection a name, and add a continuation sheet with the titles of the individual works.

Even better, you can register unlimited numbers of your unpublished works on a single application. What's "unpublished" mean? I tell clients that "publication" consists of getting copies of your work "out there." The Copyright Act defines it like this:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

OK, that's pretty clear. But the law was written in 1976, long before the internet, and Congress hasn't seen fit (yet) to put a finer point on the law to reflect current reality. Does posting something on the internet constitute "publication"? Since Congress hasn't answered the question, it's been left up to the courts. Remarkably (to me, anyway) there is only one reported case on this point, and this case (decided by a federal court in New York City) decided that yes, posting something on the internet is publication, because people are readily able to make copies the work.

Seems to me (and to at least one scholarly commentator) that this was the wrong conclusion. Just posting something on the internet, without more, is displaying something; it's not distributing copies. And merely displaying something is explicitly not an act of publication under the Copyright Act. Putting a download button next to a work on the web, now that's publication, sure. It's an invitation to take a copy. But just sticking something up for people to look at? I think not.

But what I think doesn't matter, so until Congress acts or until another court speaks up on the issue, you'll have to assume that when stick something up on the web, you are publishing something.

So, getting back to copyright registration, you can gather up all of your unpublished works and get them all registered in one fell swoop for one fee. Again, attached a continuation sheet with the individual names of the works, and submit your works (you need to give them copies of all of the works you are registering) in a fairly orderly fashion, and you're all set.

If you publish a periodical, like a newspaper, magazine, or even an internet newsletter, you may also qualify for "batch" registration of your work, even post-publication. Recognizing that individual registration of "serial" works would be a financial and administrative nightmare, the Copyright Office has special rules that allow for periodic registration (annual or every three months, depending on your publication) of regularly published periodical works.

Also, a photographer can register published works in batches once a year, by calendar year. That's a great deal for the professional photographer whose works are regularly picked up for publication or reprinting. One word of caution here, though: the enhanced protections of registration only click in if your work is registered within three months of the publication of your work. So if you publish a work in January, there's an infringement in June, and you register your annual batch in December, you're out of luck. To guard against this, many photographers gather up and register their published works every three months, to make sure that everything they publish has the maximum protections under the law.

© 2007 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.