Intellectual Property

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Statutory Requirements for a Copyright

To be more technical, Title 17 (Copyright Act), Section 102 (Subject Matter) of the United States Code defines Copyrights, generally, as “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” These works of authorship must then fall into, at least, one of 9 defined categories in order for your authored material to be copyrightable (computer databases have been added by amendment).

United States Copyright Registration Process

The registration fees for a U.S. copyright range from $35 for a basic claim to over $1,000 depending on the sophistication of the claim(s) and other factors. Processing times for the Copyright Office to process your claim currently range between 3 (e-file) and 10 months (special forms and/or paper filing). It is important to consult a copyright attorney regarding copyright registration as self-filing may impact the accuracy of the filing and processing time, lead to possible infringement claims, and result in other privacy and general protection concerns.

Registering a copyright in order to be afforded protection is not specifically required. There are, however, several benefits that include providing the world with constructive notice of the work of authorship, full financial benefit of the work and location of reference. A copyrighted work, however, will be made public record. This can be beneficial because it puts potential infringers on constructive notice of your copyrighted material. Furthermore, in order to bring an infringement claim of a copyright against another party to be litigated in the United States, the copyright must be filed with the United States Copyright Office, a service unit of the Library of Congress.

Registering a Copyright versus Trade Secret Protection

However, registering a copyright is not always the best course of action. For example, if the idea behind your work is more valuable than the actual written material or software code, it may be better to not publicly register the work and rather seek protection under Trade Secret laws. It is important to consult an experienced intellectual property attorney who will be able to guide and instruct you on the most secure and beneficial strategies for protecting your property.

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Copyright Assignment, Copyright Licensing, and Royalty Agreements

The exclusive rights of a copyright owner or of an author may be permanently transferred through an assignment agreement. Alternatively, these rights may be partially or temporarily transferred through a licensing agreement. It is extremely important to consult an attorney regarding the formation and content of either of these agreements to understand your rights and to help insure you are receiving adequate compensation for your work of authorship in the form of a lump sum and/or royalty payment structure.

Copyright Infringement

Anyone who violates the exclusive rights of a copyright owner is an infringer of the copyright owner (see section 501 of the U.S. Copyright Act). In order to bring an infringement claim of a copyright against another party to be litigated in the United States, the copyright must be filed with the United States Copyright Office, a service unit of the Library of Congress.

An infringer of a copyright may be both civilly and criminally liable. Civilly, an infringer may be liable for actual damages and lost profits or statutory damages. Statutory damages, dependent on the circumstances of the infringement, may range between $250 and $150,000. In some circumstances, an infringer may be liable for the back payment of licensing fees. Due to these potential risks of financial loss, it is important to consult an attorney to perform a thorough copyright search using the Catalog of Copyright Entries (CCE) and other search instruments to determine the existence and legality of any filed copyright.

Lastly, as is typical with many claims under the law, there is a statute of limitations that specifies the time limit that a claim for copyright infringement must be brought or risk being barred from bringing the claim altogether. For civil cases, the statute of limitations is 3 years after the claim accrued while criminal actions have a statute of limitations for 5 years after the cause of action arose.

Is someone using your copyrighted work? Contact us about your rights today!