Kara Sears
Common law copyright is a form of intellectual property that protects original works of authorship, such as literary, musical, and artistic works, as long as they are fixed in a tangible medium like paper, canvas, or a recording. While most copyright protections in the United States are defined by the federal Copyright Act, common law copyright may be available for certain categories of works that fall outside of federal copyright law. To enforce common law copyright, it must be federally registered with the United States Copyright Office. This registration process includes filling out the proper forms, paying the necessary fees, and submitting a specimen of the work. Despite efforts to abolish common law copyrights, cases of common law copyright infringement continue to be filed, particularly in situations where the work in question was not published.
| Characteristics | Values |
|---|---|
| Common law copyright | Refers to copyright protections based on old English law and copyright laws enacted in various states |
| Who does it vest in? | The author of the copyrighted work |
| What does it protect? | Original works of authorship like literary, musical, and other types of artistic work |
| What medium should it be fixed in? | Tangible medium (such as paper, canvas, or a recording) |
| What are the two essential protections? | The right to prevent others from copying or using the works while unpublished and the right to control the first publication of the work |
| When does protection end? | After the first publication, common law copyright protections end and statutory protections for published works become applicable |
| What is the duration of copyright protection? | Works created on or after January 1, 1978, have a copyright term of the life of the author plus seventy years after the author's death |
| What happens if the work is a joint work? | The term lasts for seventy years after the last surviving author's death |
| What about works made for hire, or anonymous or pseudonymous works? | Copyright protection is 95 years from publication or 120 years from creation, whichever is shorter |
| What about works created before 1978? | They have a different timeframe and fall under a mixture of state statutes and common law copyright |
| What is the intention of Section 301? | To preempt and abolish any rights under the common law or statutes of a state that are equivalent to copyright and that extend to works within the scope of federal copyright law |
| What is the main argument in favor of a single federal system? | To promote national uniformity and to avoid the practical difficulties of determining and enforcing an author's rights |
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What You'll Learn
Register your work with the US Copyright Office
Registering your work with the US Copyright Office is a crucial step in protecting your intellectual property rights. While copyright protection automatically applies to original works of authorship fixed in a tangible form, registering with the US Copyright Office provides additional benefits and strengthens your legal position in case of infringement. Here are the key steps and considerations for registering your work:
Understanding the Registration Process:
The US Copyright Office provides a Registration Portal on its website, serving as a central hub for all registration-related matters. This portal guides you through the process, helping you select the appropriate category for your work and offering instructions on how to register. The specific form required depends on the nature of your work, and it's important to choose the correct one to avoid costly mistakes. The US Copyright Office also offers toolkits and resources to assist you in understanding copyright law and preparing for registration.
Selecting the Appropriate Forms:
The US Copyright Office offers various application forms, such as the "Standard Application," but it's important to note that this form cannot be used to register a collection of unpublished works. If you submit multiple works on the "Standard Application," the Copyright Office may register only one work and remove the others from the claim. Therefore, it's crucial to carefully review the instructions and select the appropriate form for your specific type of work.
Submitting Required Materials:
To register your work, you must complete the necessary forms, pay the corresponding fees, and submit a specimen or copy of your work to the US Copyright Office. The fees vary depending on the type of work, with costs starting at $45 for a single application and increasing up to $500. The review process can take approximately 3 to 9 months, depending on the complexity of your application.
Understanding the Limitations:
It's important to be aware that the US Copyright Office does not evaluate the originality, creativity, or plagiarism of the work being registered. The responsibility falls on the copyright owner to ensure their work is original and eligible for protection. Additionally, the Office does not proactively check rights, content, or ownership. Instead, they review applications to ensure they meet the necessary requirements and may take administrative notice of facts known to the Office or the general public.
Seeking Professional Assistance:
Given the potential consequences of erroneous registration, consulting with intellectual property attorneys or specialists in copyright law can be a wise decision. They can guide you through the registration process, ensuring your work is correctly registered and protected.
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Seek legal counsel to ensure your work is protected
Seeking legal counsel is a crucial step to ensure your work is protected by common law copyright. Here are some reasons why:
Expertise and Guidance
Copyright lawyers are specialists in the field of intellectual property law. They can guide you through the complex process of registering your work for common law copyright, ensuring that you meet all the necessary requirements and avoid any costly mistakes. The specific form required depends on the nature of your work, and a lawyer can help you identify the correct one, as using the wrong form can be an expensive error. They can also advise on any other steps you should take to protect your work effectively.
Infringement and Dispute Resolution
In the unfortunate event of copyright infringement, a copyright lawyer can represent you and handle the dispute resolution process. They will know how to navigate the legal system and court procedures, increasing your chances of a successful outcome. If someone is using your idea or material without permission, especially for financial gain, a lawyer can help you enforce your rights and seek compensation or destruction of the infringing work.
Registration and Enforcement
Copyright lawyers can assist with the registration process, making sure your copyright is correctly and enforceably registered with the relevant authorities, such as the United States Copyright Office. They can review your registration documents before you file them, answer any questions you may have, and provide valuable peace of mind. Waiting until an infringement occurs to obtain registration can sometimes hinder your ability to be awarded meaningful monetary damages in litigation, so proactive legal counsel is essential.
Cost-Effectiveness
While hiring a lawyer may seem expensive, it can save you money in the long run. Copyright lawyers can help you avoid costly errors and increase your chances of success in infringement cases, potentially recovering attorneys' fees and other costs. Some lawyers may even take your case on a contingency basis, where you only pay a percentage if you win, though this usually requires a strong case.
Peace of Mind
Having a legal professional by your side provides reassurance that your work is adequately protected. They can help you navigate the complex world of copyright law, ensuring you don't inadvertently make mistakes that could compromise your rights. This peace of mind allows you to focus on your creative endeavours, knowing your work is in capable hands.
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Understand the limitations of common law copyright
Common law copyright is ordinarily preempted by federal copyright law. However, for specific categories of works, common law (state) copyright may be available. For example, in the New York State 2005 case, Capitol Records v. Naxos of America, the court ruled that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights. This precedent was later partially overruled in 2016 in Flo & Eddie, Inc. v. Sirius XM Radio.
Despite this, common law copyright has its limitations. Firstly, it is important to note that common law copyright claims that fall under the subject matter of Sections 102 and 103 of the US Copyright Act are generally preempted by Section 301, which came into effect in 1978. This section preempts all state common law copyright claims for works other than sound recordings fixed before February 15, 1972.
Another limitation of common law copyright is that it may not provide the same level of protection as federal copyright. In the context of litigation, federal registration is often necessary to enforce your rights and seek monetary remedies for copyright infringement. Without federal registration, it may become uneconomical to enforce your rights under common law copyright.
Additionally, the duration of common law copyright may be limited. The Statute of Anne, for instance, superseded any common law rights of the author that may have existed prior to the statute. This statute introduced durational limits on copyright in published works.
Furthermore, common law copyright may not be recognized or enforced in the same way as federal copyright in other jurisdictions. It is important to consult with an attorney specializing in copyright law to understand the specific limitations of common law copyright in your jurisdiction.
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Know the history of common law copyright
The history of common law copyright is a long and complex one, with its origins dating back to the introduction of the printing press to England in the late 15th century. As the number of printing presses grew, authorities sought to control the publication of books by granting printers a near monopoly on publishing in England. This led to the Licensing Act of 1662, which confirmed the monopoly of printers and established a register of licensed books to be administered by the Stationers' Company, a group of printers with the authority to censor publications.
However, the 1662 Act lapsed in 1695, leading to a relaxation of government censorship. In 1710, Parliament enacted the Statute of Anne to address the concerns of English booksellers and printers, which lasted until 1774. The 1710 Act established the principles of authors' ownership of copyright and a fixed term of protection for copyrighted works (14 years, renewable for another 14 if the author was still alive).
The Battle of the Booksellers took place between the 1740s and 1770s in the United Kingdom. The dispute was over common law, specifically the royal grants of copyright that publishers could pass on to their heirs in perpetuity. When Donaldson v Beckett reached the House of Lords in 1774, Lord Camden remarked that "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age".
In 1790, Congress passed the first federal copyright law in the United States, which has been updated over the years to remain current. The US Constitution holds that "patents and copyrights are exclusive rights".
In 1834, the courts in the United States addressed the "natural right" aspect of the common law copyright doctrine in Wheaton v. Peters. The decision struck a decisive blow against the notion of copyright as a perpetual natural right, with Justice McLean stating that an author's literary property rights in their works are separate from the right to assert "perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world".
In 1978, Section 301 took effect, preempting all state common law copyright claims that fall under subject matter in Section 102 or Section 103, except for sound recordings fixed before February 15, 1972. This left a significant amount of work still covered by a mixture of state statutes and common law copyright.
In 2005, a New York State case, Capitol Records v. Naxos of America, held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights. This ruling was clarified and limited in 2016 with Flo & Eddie v. Sirius XM Radio, which determined that the extent of common law copyright in New York did not cover the performance of a sound recording.
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Learn the difference between common law and federal copyright
Copyright is a type of intellectual property that protects original works of authorship as soon as the 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 the legal doctrine that grants copyright protection based on the common law of various jurisdictions, rather than through the protection of statutory law. It is based on the contention that copyright is a natural right, so creators are entitled to the same protections anyone would have in regard to tangible and real property.
In the United States, common law copyright also refers to state-level copyrights. Most state-law copyright claims are preempted by federal copyright law, but for some categories of works, common law (state) copyright may be available. For example, in the New York State case of Capitol Records v. Naxos of America, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights. This precedent was partially overruled in 2016 in Flo & Eddie, Inc. v. Sirius XM Radio, which determined that the extent of common law copyright in New York did not cover the performance of a sound recording.
Federal copyright law has definite scope and duration, as specified in federal statutes. It provides the owner of the copyright with the right to authorize others to exercise exclusive rights, subject to certain statutory limitations. The length of copyright protection depends on when a work was created. Under the current law, works created on or after January 1, 1978, have a copyright term of the life of the author plus seventy years after the author's death.
To enforce common law rights, common law copyright must be federally registered with the United States Copyright Office. Federal registration is the best way to ensure that if your copyright is infringed, you can enforce your rights through monetary remedies. In this regard, federal registration should allow you to recover statutory damages and possibly the costs of a copyright infringement lawsuit, including attorney's fees.
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Frequently asked questions
Common law copyright is a legal doctrine that provided copyright protection based on old English law and the copyright laws enacted in various states. It protects "original works of authorship" like literary, musical, and other types of artistic work as long as they are fixed in a tangible medium (such as paper, canvas, or a recording).
Common law copyright only applies to works that were created before 1978 and are not eligible for copyright protection under the Copyright Act. Works created on or after January 1, 1978, have a copyright term of life of the author plus seventy years after the author's death.
Common law copyright provides two essential protections: the right to prevent others from copying or using the works while unpublished, and the right to control the first publication of the work.
Before your common law rights can be enforced, your common law copyright will have to be federally registered with the United States Copyright Office. Federal registration should allow you to recover statutory damages and possibly the costs of a copyright infringement lawsuit, including attorneys' fees.
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