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November 19, 2015
In the United States, whether you’re a musician, an artist, a coder, a photographer, an author, or anyone else who uses their passion to expression themselves through a physical or digital medium, you are entitled to US copyright law protection. But how do you get the most out of copyright law and ensure you are fully protected? Here are a few tips to keep in mind every time you snap a photo, write a song, or draw a stick figure on a napkin in a restaurant.
1. The moment you put pencil to paper, you are protected by copyright
Many people mistakenly believe that they have to register a creation with the Copyright Office in order to have copyright protection for their work. Wrong! The moment your creation is visible or audible to another person – whether it’s written, recorded, painted, etc – copyright protection is established. You have the right to protect your creation from abuse and nobody has the power to tell you otherwise. The 1976 Copyright Act specifically changed the process by which copyright affixes to a piece of work. Prior to the 1976 Act, copyright required notice, often registration and a few other hoops to jump through. Today, none of that is necessary. For example, the moment I complete this blog post I will be protected by copyright law.
2. Although it’s not necessary, registering your copyright gives you added protections
Once your work is completed, you have the option of registering it with the US Copyright Office. Although you don’t have to register for copyright to be in effect, by registering you actually get significantly better protection. For example, if you are a photographer and take a picture of the New York City skyline, using a specific filter, a peculiar angle and at just the right time so the purple and pink sky collide above the Empire State Building, that is your copyrighted work. Should someone else try to use that picture without your permission in a magazine, an ad or some other format, you have the right to claim damages. However, this is where registering comes in very handy. A non-registered copyright owner will have to prove the extent of the damages that occurred; which could result in minimal to moderate damages. On the other hand, a registered copyright holder is entitled to statutory damages of up to $250,000, regardless of the actual damages incurred. I’m not advocating that you sue every time your picture is used on a blog post (*wink *wink), but when someone really abuses your copyright, registration gives you a world of power you wouldn’t have otherwise. However, keep in mind that registration costs money, so I wouldn’t recommend registering all 106 pictures you took of the Empire State Building… just that perfect one that blows the others away.
3. You don’t actually need to use the ©, but it helps stake your claim
Before the 1976 Act, it was a requirement for a copyrighted piece of work to use the copyright symbol “©” in order to claim copyright protection. However, after the 1976 Act, that requirement has gone away. Keep in mind that there is such a thing as public domain, where pieces of work have either lost their copyright, or the original copyright owner has freely given it up. In order to ensure someone doesn’t mistake your work for a public domain work (or someone else’s work), it’s good practice to always include the “©” symbol on your work along with your name and the year it was made, when possible.
4. Although you don’t have to sue, you must enforce!
If you find someone using your copyrighted work without your permission, you must enforce your rights, even if you don’t want to sue. I am not one who advocates suing every time a copyright is misappropriated (see my rant on Demand Letter Defenses), but I definitely advocate sending cease and desist letters when possible. Failure to properly protect your copyright once you have knowledge of its unlicensed use could result in losing your copyright protection. If you know that someone is using your work, but fail to demand they stop, the law may assume that you no longer want to enforce copyright protection and your work could inadvertently become public domain. Remember, you don’t have to sue, but you should definitely send a polite letter telling them to stop using your work immediately.
Do you have questions regarding a piece of art that you have made or are about to make? Give me a call and let’s discuss your concerns and make sure you are fully protected by copyright law.
Mike Terkanian, Esquire
DISCLAIMER: The information provided in this post should not be construed as legal advice. It is provided for research purposes to give you basic information on the content contained herein. This post does not create an attorney-client relationship nor should it be used as authoritative. If you have questions regarding the conclusions reached in this post, please call our offices or contact your legal counsel.