By BOB LABATE and PETER STRAND
You’ve done the hard part–the heavy lifting; you’ve created something original and worthy of putting your name on. And, as discussed in the previous column, if you collaborated, you and your fellow authors have signed a written agreement that describes the ownership percentages, credit and who has the right to license or transfer the work. Now take the easy step and protect your rights in creative work. Put the country on notice that you created the work and that you own the copyright in it.
Registering Your Work
How do you obtain such protection? First, let’s put to rest the myth of the "poor man’s copyright," that is, the belief that you can "unofficially" register your work by sending a copy to yourself in a registered letter. Don’t do it. All you’ve done is to collect an envelope (which you likely will lose) with the date of the postmark stamped on the envelope. It is not proof that you created anything or that a copy of your work was actually in the envelope when you mailed it.
For written works, it is much more effective to send your work to The Writers Guild of America, West (wga.org), which maintains an intellectual property archive and registry available to members and non-members (for information call 323/782-4500). With over 30,000 pieces of literary material registered annually, the WGAs Registration Service is a popular and inexpensive way to establish the date that your work was created, but it does not provide you with any enforceable legal right, nor does it guarantee that you are the ultimate owner of the work. Undisputed ownership is established only by copyright registration.
To protect your rights and clearly establish your ownership, your best option is to file a copyright registration application. The application is not expensive or complicated (although it’s a little tricky understanding exactly what information is being requested) and the appropriate form, with instructions, can be obtained on-line from the Copyright Office Web site (www.loc.gov/copyright). Once you’ve completed the form, simply mail it to Copyright Office together with a check for $30 and a copy of the work. If you properly complete the application form, you should receive a Certificate of Registration within six to nine months.
The Benefits of Copyright Registration
Why bother registering your copyright? There are many reasons. First, registration establishes a public record of your copyright claim in an extensive database of registered copyrights that can be searched by title, by author and by owner of the copyright. A date is established for creation of your work that will be associated with you on official government records. Thus, someone looking to use your work can find you and someone with a substantially similar work may be prevented from receiving copyright registration at all.
Second, copyright registration (and only copyright registration) enables you to sue, under the U.S. Copyright Act, for copyright infringement when someone uses your work without your authorization. The advantage of suing under the Copyright Act is that if you win, the infringing party may be ordered to pay your attorney’s fees in addition to paying your damages. You may elect to recover "actual" damages (that is the damage you actually sustained as a result of the infringement) or you may seek "statutory" damages, which allows you to collect up to $25,000 for each infringement without proving actual damages. Without registration, you will not receive your attorney’s fees and must prove your actual damages for any infringement that occurs prior to registration. This is especially significant because you cannot sue under the Copyright Act for infringement that started before registration, even if it continues after you register your copyright.
Third, licensing or selling your work to distributors is far easier, and less risky, if you can prove that you are the owner of the work. Studios and publishers want their agreements signed by the owners of the copyrighted work and if you are the copyright owner, you will have significant leverage with respect to the development of the project.
Finally, for those who have created a collection of works (such as a group of songs or a series of articles or short stories), you can register the entire collection in one registration for one $30 fee. There are certain limitations, however, such as the works must be by the same authors. For example, if you and a co-writer create 10 songs, you can register those 10 songs in one collection. However, if you wrote one of them by yourself, you cannot include that song in the collection. You can name the collection and list all of the titles of the works contained in the collection. The only practical drawback is that only the title of the collection and perhaps the title of the first work will show up in the Copyright Office database. This does not mean that you do not have a registration that covers all of the works; it simply means that if someone is searching for the title of a work that is down the list, they won’t be able to find that title.
Duration of Copyright Registration
The duration of a copyright is for the lifetime of the author plus seventy years. In other words, your heirs will continue to enjoy the monopoly of your copyright for as long as 70 years after your death.
Being Vigilant
Be aware that copyright registration is not a bulletproof vest. You must be always wary in this digital age of giving your work to others or allowing access to digital files that contain your work. For instance, when you send you work to others to review, it should always be accompanied by a statement (preferably on the first page) to the effect that this work is copyrighted in your name and that it is being sent for review only and that reproduction or dissemination by any means is prohibited. The safest approach is to secure the agreement of the receiving party in writing not to do anything with your work without your permission. And be very, very careful not to send out your work in digital form, unless appropriate precautions are taken to prevent unauthorized copying or posting on the world wide web.
Although a registration allows you to sue under the Copyright Act and, if you win, collect attorney’s fees in addition to your damages, the process of filing a lawsuit is expensive. So, unless you are willing to let your work go for free, know who you are giving it to and if you are presenting it to a potential distributor, publisher, or some other entity to exploit the work, get their written agreement not to steal your idea.
Finally, keep records. Your copyright file should include your original draft, all subsequent drafts, the final version, the copyright registration application, the copyright certificate, and any agreements regarding authorship or joint ownership of the work. Give a copy to your attorney and consider placing your copyright information in a safe deposit box.
© 2001 Robert J. Labate and Peter J. Strand. This column is provided as a source of information and is not to be construed as legal advice or opinion. You may contact me through our firm’s web-site (mbc.com), via email at labate@mbc.com or, via mail, to Bob Labate or Peter Strand, McBride Baker & Coles, 500 West Madison Street, Suite 4000, Chicago, Illinois, 60661 312/715-5700.