Protection of Copyrights--
How to Arm Your Cannon and Stop The Pirates
PART 2 - HOW DO WE PRESERVE AND PROTECT IT?
It must be Registered Free Forms & How To Types of Works More Hints Benefits of Registration
© 1997, 1999 Green & Green All Rights Reserved
The Copyright Act provides an easy method to protect copyrights. In part 1 we outlined what a copyright is and how it differs from the underlying idea. Here you learn how to protect the copyright once it has been "fixed in a tangible medium of expression."
SAY YOU CREATED a great educational multimedia work. the work is so well done that it can be installed on a client computer via World Wide Web download, complete with MP3 Music. The work consists of a game to teach math. The information containing data packets is all easily downloadable even with a 28.8 modem thanks to your way of creating images using data from a program that resides on the client and makes play by multiple users seamless with the desktop. There are characters, images, text, puzzles and math games. You begin to sell, then sales go higher, and eventually you get a million hits/day of playing kids all learning better math. The suddenly sales drop; you had a publisher interested but because of the drop they are not calling. Then you see another new game that looks like, has the same characters and is taking over your sales. You have not registered your copyrightable elements and you now are unable to stop the infringement. You can't even file a complaint in federal court! Your cease & desist letter goes unanswered and you are told it will take a while to get the copyrights filed. When you do you are told that you have no statutory damages allowed and many other benefits of registration are now unavailable.
The AUTHOR has a copyright from the moment an original work of authorship is created. This common law copyright subsists in all works. Who is the Author; is it another's work? Is it a work made for hire? When the work goes beyond an idea or outline and becomes "fixed" and is tangible, as a photograph, running software, drawings, scanned images, film or digital video, it becomes a "work of authorship" under the U.S. Copyright Act. The Act was originally passed effective in 1909, then underwent a huge amendment in 1976, effective 1-1-78. Now again in the last few years the Act has been amended and continues to be debated. The U.S. seeks to bring U.S. law within international agreements and provide safe harbors, definitions all nations agree on and new laws to cover the digital and online revolution. See articles on the Digital Millenium Copyright Act.
In Copyright one thing has not changed, yet. Without registration with the Library of Congress Copyright Office (see "Links" page), you would have a difficult if not legally impossible claim if you attempted to protect the work. It is a federal jurisdictional requirement that, before you can even file a complaint for infringement of copyright, it must be registered with the Library of Congress Copyright Office.
Registration of most works can be done by YOU, the publisher or creator. The method of "fixation" determines what process you need to use to register a copyright. We have heard of people sending their songs, drawings, text or other materials through the mail and back to them to "protect" it. All this does is create an inadmissible proof of the date of mailing; it does NOTHING to protect the work. To protect a work it must be properly registered.
How to register:
First, create a "best edition" of a work, a completed unpublished work, a new
version or manuscript, sketch, the first and last 25 pages of source code on paper as the
deposit copy. This may be "published" (generally, sold to the public in a public
way) or unpublished. Yes, you can register an unpublished work and even keep its existence
a secret, while protecting it through registration.
Second, obtain the proper form. The form depends on, as stated, the method used to
"fix" the work. Forms are available free, online with complete instructions.
AFTER YOU CHECK THE FOLLOWING OUT try the FORMS PAGE of the Copyright Office
TYPES OF WORKS OF AUTHORSHIP:
BOOKS, MANUSCRIPTS, PLAYS, SCRIPTS, SOME SOFTWARE, TREATMENTS FOR FILMS:
Use a TX to register a work that consists mainly of text. A TX is also used for registration of source code of a computer program.
DRAWINGS, PAINTINGS, 3D OBJECTS, GRAPHICS, PHOTOGRAPHS, MOST MULTIMEDIA, VIDEOS, FILMS:
Use a VA to register a work that mainly are of the visual arts, like drawings, photos. A VA is also used to register the multiple elements of a multimedia work, though it not the best "fit" and I wish the Copyright Office would come up with a better form for this purpose (an MM?).
PERFORMANCES, RECORDINGS OF PERFORMANCES, CHOREOGRAPHY, MUSIC, SHEET MUSIC:
Use a PA to register a musical composition, which can be written sheet music or a recording.
MUSICAL RECORDINGS:
To register a particular recorded musical performance, use a SR (sound recording). One can register an album or song collection recording however it is wise to either register each song or to be sure to list all songs carefully on the album.
COMPUTER CHIP MANUFACTURING MASK WORKS:
There is even a form MW for a chip mask work. These are the masks used in the etching process in computer chip making to alter the chemical structure of the chip and embed, by chemical etching processes, the image of an entire circuit.
MORE HINTS:
Each form is made so that the author can fill it in. Where you may need an
attorney at this point is where you want to do a bulk of works,
or a tricky RE form to renew older works, or if you do not like
to handle the business aspects of all this. You WILL need an attorney to help with a multimedia
work, if you do not know who the "author" or "claimant"
is, or if you have a trade secret unpublished work (usually
software in beta and other pre-release versions).
Send the completed form, with a deposit copy of the work with a letter asking for
registration and $20.00 (that's right only $20.00!) to the Copyright Office and in about
7-12 months you should get the registration. Naturally, if the Copyright
Office writes back, you may need an attorney who is knowledgeable about
copyright to respond. BE ABSOLUTELY SURE to retain copies of
everything you send, including the check, letter and deposit, for later proof or if
something gets lost.
- 17 USC Section 411 requires the work to be registered before an infringement suit can begin.
- IF registered within 5 years of the date of publication: The Certificate is deemed true and correct for evidence purposes. The registration gives the claimant "prima facie" proof (or proof without the hassle of proving) that it is really the claimant's work. This saves hundreds of litigation hours and allows a judge to issue injunctions more easily.
- NOTICE of your claim to ownership of the work is made a public record.
17 USC Section 412: in order for a copyright owner to be entitled to recover the following, the work must have been registered prior to infringement:
- statutory damages of up to $100,000 per infringement for willful infringement.
- Your attorney's fees, assuming you win.
- exclusion by the Customs Service of imported infringing works.
FOREIGN WORKS: Though owners of foreign works are allowed to go to court without registration they still must pre-register to obtain the following benefits:
- Precluding an innocent intent defense in mitigation of damages, thus there is no "deemed" true and correct facts of ownership if there is no certificate, making that litigation much more expensive and doubtful.
- Foreign proprietors must continue to place a valid copyright notice on their published works.
- recovery of statutory damages and
- attorney's fees,
- the benefits of a prima facie presumption of validity, and
- exclusion by the Customs Service, make registration necessary for foreign works.