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Savvy business owners understand the importance of intellectual property (IP) to their business’ success and most can name patents, trademarks, and copyrights as some of the various forms that IP can take. But the distinctions between copyrights, patents, and trademarks is often confusing and misunderstood, even by business people that regularly deal with IP. But not understanding the differences between the various forms will often mean that you don’t have the right type of protection in place for some of your business’ most valuable assets.

Here’s a crash course in copyrights for your business where we’ll discuss the basis for copyright protection, what can be protected, as well as the benefits of registering your business works with the U.S. Copyright Office.

What Is a Copyright? 

Bear with us as we present the legal discussion of what a copyright encompasses. A copyright is a form of legal protection for original works of authorship that are fixed in a tangible medium of expression. This is a very technical legal definition that basically means that (1) the copyright only extends to original creations (though originality is subject to its own tests) that have (2) somehow been recorded are capable of being protected. So a melody or tune that has just been sung or performed but has never been recorded in musical sheets, or an audio or video recording can not be copyrighted.

But don’t limit your thinking to believing only creative works that we associate with Hollywood and famous musicians- copyright has an important role in typical business contexts as well.

Business Copyrights 

While people usually think of copyright law only extending to movies, books, songs, lyrics, paintings, photographs,  and other similar works it is much broader than that. In the business context, copyright includes items as diverse as emails, letters, legal documents, articles, computer programs, spreadsheets, scientific models, drawings, architects plans, photographs, and graphic designs.

Copyright covers both published and unpublished works- so the subject matter doesn’t need to be circulating in the public. This distinction is important for companies that are spending tremendous resources, both time and money, in developing and producing training or marketing materials and want to prevent competitors from being able to copy their materials. Copyright provides a weapon to combat such infringement by a a competing business. We will discuss how further in the sections below.

Benefits of Registration

While registration was once required to protect a work under U.S. Copyright law, the current law is explicit:  “registration is not a condition of copyright protection.”

Ability to Sue for Infringement

Registration of your materials gives you several additional protections that unregistered works do not. Most importantly, you must register your copyright before you can sue someone in court for infringement. This is not something that you will want to seek out when you already have a problem with an infringer using your materials.

Notice to the World

Additionally, registration provides notice to everyone in the world that you own the copyright, making it more difficult for infringers to argue that they infringed “innocently” or “unknowingly.” This makes a huge difference in the amount of money that you may recover in an action against a bad actor.

Statutory Damages

When someone infringes your copyright you are entitled to “actual damages” and “profits of the infringer that are attributable to the infringement” per the law. Proof of these forms of damages are highly subjective and often makes pursuing a legal remedy difficult if there is not a registration.

However, a copyright registrant has the option to elect statutory damages in lieu of actual damages, which makes the calculations very simple and straight-forward. Statutory damages ranges from between $750 to $30,000 per work and can even go up to $150,000 per work if the infringement can be proven to have been willful.  Additionally, as a holder of a registered copyright, you may also be awarded attorney’s fees and court costs.

Ability to License or Assign

Registration of a copyright makes it easier to transfer or assign rights in your copyrighted materials. This is critical in some industries if you intend to sell or license your work for royalties or other fees. Think of authors who write a book and wish to publish it or musicians who record music and wish to distribute their works on Spotify, YouTube, etc.

Copyright Registration Process

While anyone can technically find the forms on theU.S. Copyright Office website and submit the application themselves, the process for registration of a copyright is usually handled by experienced IP attorneys, given the complexities of the registration process with the U.S. Copyright Office, part of the Library of Congress, as the official registrar of U.S. Copyrights.

Registration Costs

The cost to register a copyright for a work varies on the filing timing- if the registration is needed within a few days, there is an expedited fee for several hundred dollars.  Given the complexities of the law and the ability of defense lawyers in copyright actions to invalidate registrations that contain even the slightest of errors, it is recommended that you seek assistance from an experienced attorney to register your copyrights.

Deadlines for Registration

While it is possible for you to register a copyright anytime during its statutory lifetime, which is currently the life of the author plus 70 years, we’ve seen that there are numerous benefits to registration as soon as possible. However, as set forth below, you can obtain certain benefits only by timely registration.

The first timeline to keep in mind is that you must register your copyright within three months of the date of first publication (or, in the case of unpublished works, before the end of the first month after initially learning that your work was infringed) to be entitled to statutory damages and attorney’s fees as mentioned previously.

Additionally, registration made before the end of five years from the date of first publication constitutes prima facie evidence in court that a copyright is valid and that all the facts stated in the certificate of registration are true.  This fancy Latin legalese basically means that it shifts the burden to the defendant to show that your copyright is not valid or that you are not the owner. This is a quite valuable shift in the burden of proof of the parties and makes your job as the copyright owner much easier.

Final Thoughts

Registering your business works is affordable and, if done properly, grants you significant additional rights making it easier and more lucrative to enforce against infringement which may occur.  If you do not do not register your copyrights, you may lose certain statutory rights against infringers that are cheapening the value of your work.

Additionally, if you intend to sell or license your work in whole or in part registration makes it tremendously easier to do so and is often a prerequisite for any companies who buy, license, or distribute works like the one they are interested in obtaining from you.

In conclusion, think of a copyright registration as a small investment in protecting your business’ work that can result in significant benefits, both by assisting to stop infringement as well as making your business more marketable.

Feras Mousilli

Feras Mousilli

Feras Mousilli is a founding partner of Lloyd & Mousilli and advises clients on technology law issues. He specializes in counseling start-ups through Fortune 100 companies on intellectual property. He served as Senior Corporate Counsel for Apple & Dell and as a patent attorney with the DLA Piper law firm. Mr. Mousilli acted as President Elect for the Association of Corporate Counsel in Austin and a Guest Lecturer at the University of Texas and UC Berkeley Schools of Law. He is the proud recipient of the Covington Pro Bono Award and was selected as a Texas Rising Star in Super Lawyers by Texas Monthly. Feras holds bachelor degrees in Biomedical Engineering & Computer Science, and a Masters in Computer Science Engineering from Johns Hopkins University. He earned his Juris Doctor from the University of Texas School of Law.