Gavin Howe
While the term common law copyright is often used, it is not technically correct. In the United States, all copyright is based on federal copyright statutes, and an unregistered copyright is simply called an unregistered copyright. When a work is created, the creator automatically owns the copyright and has exclusive rights to exercise various rights, such as reproduction, distribution, and public performance. However, to sue for copyright infringement in federal court, the copyright must be registered. Registering a work creates rebuttable presumptions of validity and ownership, and it allows the copyright holder to recover statutory damages and attorney's fees if they prevail in court. Therefore, while it is not necessary to register a copyright, doing so provides additional protections and can make it easier to enforce one's rights in the event of infringement.
| Characteristics | Values |
|---|---|
| Common law copyright | A work is automatically protected by common law copyright |
| Registering common law copyright | Provides additional protections like the ability to sue in a federal court |
| Common law copyright in the US | Does not exist, only common law trademark exists |
| Unregistered copyright | Provides exclusive rights to exercise various rights (reproduction, distribution, public performance/display, etc.) |
| Registering copyright | Required before filing a lawsuit |
| Federal registration | Required before an author can bring a suit |
| Statutory damages and attorney's fees | Can be recovered if the work was registered with the Copyright Office within three months of the work's publication or before the infringement |
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What You'll Learn
Registering common law copyright
Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. Works are original when they are independently created by a human author and have a minimal degree of creativity. Common law copyright is a term used in the United States to refer to most state law copyright claims. In 1978, Section 301 took effect, preempting all state common law copyright claims that fall under the subject matter in Section 102 or Section 103, except for sound recordings fixed before February 15, 1972.
Despite copyright existing automatically in an original work of authorship, a copyright owner can take steps to enhance the protections. The most important step is registering the work. Registering a work is not mandatory, but for U.S. works, registration (or refusal) is necessary to enforce the exclusive rights of copyright through litigation. Timely registration also allows copyright owners to seek certain types of monetary damages and attorney fees if there is a lawsuit, and also provides a presumption that the information on the registration certificate is correct.
To register a work of authorship, the relevant forms have to be filled out, the proper fees have to be paid, and a specimen of the work has to be submitted to the Copyright Office. The specific form required depends on the nature of the work and can be tricky to determine on your own. Many times, people register their work using the incorrect form, a mistake that can be costly.
In the context of litigation, federal registration is the best way to ensure that if your copyright is infringed, you can enforce your rights through monetary remedies. Federal registration should allow you to recover statutory damages and possibly the costs of a copyright infringement lawsuit, including attorneys' fees. However, you must obtain federal registration within a certain period for these remedies to apply.
In the United States, there is only one place to register claims to copyright: the Copyright Office.
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Suing in federal court
To sue in federal court for copyright infringement, you must first register your work with the U.S. Copyright Office. This creates a rebuttable presumption of validity and ownership. While it is not a requirement to register your work to own the copyright, registering provides additional protections and benefits, such as the ability to sue in federal court and recover statutory damages and attorney's fees.
Before registering, it is important to consult with an attorney, as there are potential consequences to erroneous registration. Additionally, registering your work after someone has infringed upon it may prevent you from being awarded meaningful monetary damages.
To enforce your copyright in federal court, you must prove two elements: ownership of the copyright and that the defendant infringed upon it. This can be done by presenting evidence of the defendant's unauthorized use of your copyrighted work, such as displaying a copyrighted film or selling pirated editions of your book. In the case of derivative works, you must show substantial similarities between your copyrighted work and the defendant's work, as well as prove that the defendant had access to your original work.
It is worth noting that copyright infringement can also lead to criminal penalties when the infringement is deemed "willful". Criminal copyright infringement requires the same two elements as civil infringement, plus two additional elements that must be proven beyond a reasonable doubt.
Copyright litigation can be time-consuming and costly, but it may be essential to protect your livelihood as a creative artist. To make the process more efficient and cost-effective, technology can be utilized to improve research, speed up discovery, and craft stronger arguments.
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Suing in state court
Before initiating a lawsuit in state court, it is essential to establish ownership of the copyright. This typically involves demonstrating that the plaintiff is the creator of the work or that the copyright has been assigned to them. Registering the copyright with the United States Copyright Office is strongly recommended, as it strengthens the plaintiff's legal position and enables them to seek monetary remedies, including statutory damages and attorney's fees.
When suing in state court for common law copyright infringement, plaintiffs must prove that the defendant violated their exclusive rights to the work. This can involve presenting evidence of unauthorized use, such as displaying a copyrighted film or selling pirated books. In cases of derivative works, plaintiffs must show substantial similarities between their copyrighted work and the defendant's, as well as proving that the defendant had access to the original work before creating their derivative version.
It's worth noting that there is a statute of limitations on copyright infringement lawsuits. Plaintiffs typically have three years from the discovery of potential infringement to file a lawsuit, and if the infringement is ongoing, the timeframe starts from the date of the most recent infringement. Additionally, plaintiffs should be aware of the potential financial burden of litigation, with the average cost of litigating a copyright infringement case in federal court being substantial.
To initiate a lawsuit in state court, plaintiffs should consult with attorneys specializing in copyright law. These legal professionals can guide plaintiffs through the process, including registering the copyright, gathering evidence, and navigating the state court system. By working with experienced attorneys, plaintiffs can increase their chances of a successful outcome in enforcing their common law copyright rights.
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Common law copyright protections
The 1976 amendments to the US Copyright Act abolished common law copyrights and most state laws regarding copyrights. The Act stated that exclusive rights regarding original works of authorship would be "governed exclusively" by the Copyright Act, regardless of whether the works were published or unpublished. This effectively eliminated the legal distinction between published and unpublished works in the context of copyright protections.
Despite these changes, there is still room for state and common law copyright laws to operate. Occasionally, copyright infringement cases are brought based on state statutes or common law. However, these cases can be challenging to win, as they often depend on whether the work in question was published or not.
It is important to note that while copyright holders are not required to register their works, registration is necessary to file an infringement lawsuit. Federal registration is required before an author can bring a lawsuit, even if they are claiming common law copyright protection. This is because federal registration allows copyright holders to seek monetary remedies, such as statutory damages and the recovery of costs associated with a copyright infringement lawsuit.
To register a copyright, the proper forms must be filled out, fees must be paid, and a specimen of the work must be submitted to the Copyright Office. It is recommended to consult with an attorney to ensure accurate registration and avoid potential pitfalls.
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Limitations on suing
Copyright litigation can be a time-consuming and costly affair, often requiring a lengthy trial. This may be a significant limitation for plaintiffs, especially considering that the average cost of litigating a copyright infringement case in federal court from pre-trial through the appeals process is $278,000, and some cases will take over a year to litigate.
In the case of common law copyright, there are additional limitations. Firstly, before common law rights can be enforced, the copyright must be federally registered with the United States Copyright Office. This is important because waiting until infringement occurs to obtain federal registration can prevent meaningful monetary damages in litigation. Registering the copyright beforehand can help ensure the enforcement of rights through monetary remedies, potentially including statutory damages and attorney's fees.
Another limitation is the "statute of limitations" on copyright infringement. Typically, a plaintiff has three years after discovering potential copyright infringement to file a lawsuit. If the infringement is ongoing, the start date is the time of the most recent infringement.
It is also worth noting that copyright holders are not required to register their works. Copyright exists from the moment the work is created, and it applies even if the work is unpublished and unregistered. However, registration is recommended for several reasons. It can serve as prima facie evidence in a court of law if done within five years of publication. Additionally, registered works may be eligible for statutory damages and attorney's fees in successful litigation.
Finally, a common practice known as a "poor man's copyright" involves mailing the work to oneself. However, this method is not a substitute for official registration and does not provide the same benefits. While it can be used as evidence to establish the date of first creation, failing to officially register the work may preclude the possibility of obtaining statutory damages, making it uneconomical to maintain a lawsuit.
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Frequently asked questions
When an original work is created, it is automatically protected by common law copyright. This gives the creator the exclusive right to exercise various rights, such as reproduction, distribution, and public performance.
While a common law copyright is created automatically, registration provides additional protections, such as the ability to sue in federal court. If you do not register your work, you may be unable to sue for infringement until you obtain registration.
Registering your copyright creates rebuttable presumptions as to the validity and ownership of the work. Additionally, if your registered work is infringed upon, the infringer may have to pay statutory damages and attorneys' fees.
To register your copyright, you must submit the registration paperwork, pay the fee, and wait for the Copyright Office to act on the application. Even if your application is refused, you can still file an infringement claim.
To win a copyright infringement lawsuit, you must prove that you own a valid copyright and that the defendant infringed upon it. This involves demonstrating that the work is original and that it has been infringed upon through unauthorized use, reproduction, or distribution.
