From time to time, clients ask me questions about copyright protection. For example: Should I put a notice on my work? What must the notice say? What about “all rights reserved”? Should I register my copyright? If so, when? Here is a brief overview of copyright formalities. This post discusses why they are not required in the U.S., but when, where and how they might help you.
Copyright Protection Basics in the U.S.
Copyright protects works of authorship and subsists from the time the work is created in fixed form. The owner has the exclusive right (as applicable) to reproduce, distribute, publicly perform, publicly display, and make derivative works of the copyrighted work.
As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.
Like other Berne Convention parties, the U.S. does not require that copyrighted works have notices. However, 17 USC Section 401 provides that works may have copyright notices that contain the following three elements.
- The symbol © (the letter C in a circle), the word “Copyright“, or the abbreviation “Copr.” [In contrast to U.S. law and the Berne Convention, the Universal Copyright Convention requires use of the symbol ©. However, most UCC countries now are part of the Berne Convention, so the UCC today has little relevance.]
- The year of first publication.
- The name of the copyright owner.
That section further prescribes that the notice must be affixed in a manner and location to give reasonable notice of the claim of copyright. There is a benefit for the copyright owner if these requirements are satisfied. In an infringement suit, the defendant’s attempt to reduce damages by claiming innocent infringement will be given no weight. The phrase “all rights reserved” is a vestigial remnant of the Buenos Aires Convention of 1910 and is no longer required in copyright notices for U.S. works.
Works created in the United States can be registered at the U.S. Copyright Office. Registration creates a public record of a copyright but is not required for copyright protection. However, registration does offer benefits under certain circumstances.
- Generally, registration is necessary before an infringement suit can be filed. (17 USC Section 411(a))
- Registration before or within five years of publication establishes prima facie evidence of the facts stated in the registration and of the copyright’s validity. (17 USC Section 410(c))
- If the work is registered within three months after publication or prior to infringement, the copyright owner may recover statutory damages (up to $30,000 per work, or $150,000 in a case of willful infringement) and attorney’s fees. Otherwise, recovery is limited to those actual damages and infringer’s profits that the copyright owner can prove. (17 USC Section 412; 17 USC Section 504(c))
Protecting U.S. Works in Other Countries
The foregoing applies to the U.S. While the Berne Convention and other international and bilateral agreements may provide substantial protection to U.S. copyright owners against infringement in other countries, many details must be attended to. For example, Cambodia, Laos and Saudi Arabia are not members of the Berne Convention but, like the U.S., are members of the Universal Copyright Convention. Under the UCC, to receive copyright protection in another country a published work must have a copyright notice consisting of the symbol ©, the name of the copyright owner, and the year of first publication. As a result, a U.S. author who wants to maintain copyright protection in any of those three countries needs to include a copyright notice that meets UCC requirements.
In summary, while copyright formalities often are optional, there are times and places where compliance with those formalities makes sense.
Check out all posts about copyright.
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.