Monday, July 6, 2009

How to Copyright - Common Law and Statutory Law Compared by Brian A. Hall

It is widely misunderstood that one must file a copyright with the Copyright Office in order to secure a copyright. While acquiring a registration does indeed have its advantages, a registration within the Copyright Office is not required to secure rights. Instead, under common law, a copyright is automatically created when it is fixed in a tangible form for the first time. As long as it is an original work of authorship, you may claim ownership and protection and even place a copyright notice, including the "small c with a circle" symbol, on the particular work. Although a notice is not required any longer, should one desire to use it, it is important to follow the convention of using the © symbol followed by the year of the first publication of the work followed by the owner of the copyright and the work.

While creating and maintaining common law copyright protection is beneficial, the Copyright Act, a federal statute, provides additional benefits and protection rights to an owner. The most commonly recognized rights are the ability to sue within federal court, the ability to recover statutory damages up to $150,000.00 for willful infringement, and the ability to recover attorneys' fees. However, in order to receive these benefits, the copyright must be registered with the Copyright Office at the Library of Congress. While the time of filing for registration may affect which statutory damages are available, one must receive registration or be refused registration in order to proceed with an infringement lawsuit in federal court. Therefore, for a relatively small price, it is advisable to seek registration for all original works of authorship at the time of, or prior to, publication of the work. In addition, creating a public record of the work claimed, establishing a prima facia evidence of the validity, and other benefits make registration well worth the cost. With the ability to use online filing, there is no excuse for failure to register a copyright for whatever kind of work, including literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial graphic and sculptural works, motion pictures and other audio-visual works, sound recorders, and architectural works.

Ultimately, people must remember that as soon as an original work of authorship is fixed in a tangible form and published, a copyright exists. However, under statutory law, and practically speaking, having a copyright registration with the Copyright Office will provide the additional benefits and advantages should the need to enforce it arise.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm specializing in complex litigation, intellectual property matters, internet law, and copyright registration and copyright infringement matters. Speak with a copyright attorney today and learn more about the importance of understanding the intricacies of copyright registration and other copyright issues.


Terry Hart said...

Is it possible to bring a suit for infringement of a common law copyright (where someone has not registered their copyright in the US)in a state court, or is that type of action still preempted by the federal statute?

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Gabe said...

I would like to record a claim and Certificate of Assumed Name in a land recording office. I would like the Session Law reference for both Virginia and Maryland. Where can I find more information about both of these states' Session Laws regarding ASSUMED NAMES which guarantee a Common Law copyright?