Protecting Your Content: The Basics of Copyright Law

We’ve previously discussed protecting your brand by registering and enforcing your trademarks. But what about the unique content you create? Enter copyright law. Copyright protects “original works of authorship.” This can be anything from written works like books and articles, to musical and artistic creations, even computer programs and architectural plans. Copyright is an important area of law, not just for creatives, but any entrepreneur who creates content or uses content created by someone else. 

Just what does copyright protect? And why should you register your copyrights?

Copyright gives the owner of the copyright (who may or may not be the original author or creator) the exclusive right to do certain things or give others permission to do those things. Copyright includes the right to:

• Make copies of the work
• Make derivatives of the work
• Distribute the work (whether by sale, rental, licensing, etc.)
• Perform the work (i.e., musicals, dramatic works, other audio visual works, even playing recorded music)
• Display the work (i.e., displaying artwork, movies, tv shows, etc.)

What is not protected by copyright?

Copyright does not protect titles, names, short phrases, slogans, symbols or designs, colors, lists of ingredients, or tables of content. Some of these items, especially names, slogans, and symbols or designs, may be protectable under trademark law. But you generally cannot copyright the name of your book or podcast or even the slogan associated with your marketing campaign. 

Copyright also does not apply to ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices. Outside of trade secrets and contractual confidentiality and non-disclosure obligations, the law generally does not protect ideas. However, copyright may apply to actual descriptions, explanations, or illustrations of an idea (but not the idea itself). For example, if you authored a pamphlet describing your unique business process, you could protect your copyright in the pamphlet. However, you would not be able to prevent a competitor from using the same or similar ideas that you described in the pamphlet. 

Who owns the copyright?

All of the rights associated with copyright automatically belong to the author of the work from the moment the work is created in a fixed form, but keep reading! Registration is still important. (In a future post, we’ll discuss the details of works made for hire, but for now, the general rule is that when an employee creates a work, the employer is considered the author and therefore the copyright owner.) In the case of co-creations, both authors are considered equal co-owners of the work unless there is a written agreement to the contrary. 

If copyright protection is automatic, why register?

The main reason to register your copyright in any work of value is that registration is a prerequisite for bringing a lawsuit for copyright infringement. Without a copyright registration, you cannot sue someone for copyright infringement, regardless of your “poor man’s copyright” (a legal fiction, by the way) and regardless of any other proof you have that you are the copyright owner. In such cases, there isn’t even much point to sending the usual cease and desist notice because your claim doesn’t have any “teeth.” If your work is worth more than the copyright registration fee, then you should register your copyright. 

Without a copyright registration, you cannot sue someone for copyright infringement, regardless of your “poor man’s copyright” (a legal fiction, by the way) and regardless of any other proof you have that you are the copyright owner.

Copyright registration creates a public record of your copyright claim. If you register your copyright within five years of publication of your work, then the registration is considered prima facie evidence of the validity of your copyright. In other words, by registering your copyright, the burden is no longer on you to prove you are the author or creator of the work. That burden shifts to the defendant to attempt to prove the negative, i.e., that you are not the copyright owner. (Good luck with that.)
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Better still, if you register your copyright within three months of publication or prior to any copyright infringement, then you are entitled to statutory damages (generally, $750 - $30,000 per work) and attorney’s fees. If you can show that the infringement was “willful,” then the court can award up to $150,000. Without timely registration, however, you would have to prove the actual amount of your damages and profits earned by the infringer. Proving actual damages can be quite difficult. After all, infringers don’t have any incentive to keep good business records showing how much they earned from your work or how many copies they sold. And without the ability to recover your attorney’s fees, you might find yourself considering litigation that costs more than you can recover in damages.  

Final Thought: Use the Copyright Notice ©

​Even if you decide that registration costs more than what your work is worth, you should still use a copyright notice on your work. Technically, notice of copyright is not required under U.S. copyright law. However, the copyright notification puts the general public on notice of several important facts, including (a) that the work is protected by copyright, (b) who the copyright owner is, and (c) the year the work was first published. By including a copyright notice on your work, an infringer cannot claim an innocent infringement defense. (Innocent infringement is not truly a defense. Such a defendant would still be liable for copyright infringement. Innocent infringement is simply an argument that the defendant should be required to pay less in damages because the defendant did not realize the work was protected by copyright.) Unlike the registered trademark symbol ®, use of © does not require registration of the copyright. 

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