Contrary to the near-indefatigable lay assumption, you are not required to register a copyright in your work with the U.S. Copyright Office at the Library of Congress in Washington, D.C. (or elsewhere) as a condition precedent for U.S. copyright protection. In other words ... Congratulations! You already have copyright protection in your finished original work, under U.S. federal law. That protection is automatic.
When a writer says "I 'copyrighted' my novel by registering it with the Copyright Office," he or she is usually operating under a mistaken set of assumptions, and we lawyers correct them. "No", the copyright lawyer replies, "you already had automatic copyright protection in your work as soon as you wrote down the text; as soon as you reduced your vision to a 'tangible medium of expression.'" The lawyer then explains that the phrases and verb forms "to copyright" or "I copyrighted" should probably be avoided outright, specifically to prevent that kind of lay confusion.
The process of U.S. copyright registration is just an after-occurring formality. In other words, the work is already copyright-protected prior to your submission thereof to the Library of Congress in Washington, D.C. Yes, U.S. copyright registration does thereafter provide certain advantages over unregistered works. But registration is not itself a pre-requisite for protection.
Under the U.S. Copyright Act, (which now can be found on the Internet, at 17 United States Code [U.S.C.] Section 101 and following); the author of an original and otherwise-protectible work automatically possesses a copyright in that work as soon as the work is reduced to a "tangible medium of expression." No later.
The choreographer improvises a new dance for her students but owns no copyright in it. However, the moment she writes down the original dance steps or videotapes herself performing them, she may then have a chance to claim some copyrighted work. The key is the work's reduction to a fixed.
And this makes sense. Look at it from the perspective of enforcement. After all, how difficult would the job be of a federal judge or jury in a U.S. infringement litigation, or that of a U.S. Copyright Office examiner, if Congress allowed all of us to claim copyright in the inchoate and evanescent? Therefore, Congress doesn't let us get away with it. The U.S. Congress requires reduction to a "tangible medium of expression" as a pre-condition for copyright protection. But Congress does not require registration; rather, registration is discretionary with the copyright owner.
Yes, after-occurring copyright registration of a work does provide certain strategic advantages, relative to unregistered works. Registration notifies the U.S. and the world, at least constructively, that you the claimant think that you own the copyright in that registered work. Practically speaking, registration creates a likelihood that another company will "pick up" (i.e. see, or notice) your previously-registered work when they later conduct a thorough professional (or even a cursory and informal) ocular copyright search of the public records. Most film studios perform thorough copyright searches as a matter of course, for example, before optioning an author's literary work.
Copyright registration is also a necessary precursor to a copyright infringement litigation in a U.S. federal court. For this reason, in practice, individuals and companies have been occasionally known to register their copyrights days or even hours before they sue for infringement in federal court. (Of course, it is better to register the work at an earlier stage than that). Filing a copyright infringement litigation in turn allows the recovery of certain types of damages afforded by the Copyright Act (such as "statutory" damages and plaintiffs' attorneys fees), and these types of damages would not be availing to the plaintiff if he or she sued using a different common law theory. A copyright registration may also work advantages in terms of certain international protections.
My U.S. law practice includes the fields of entertainment, media and publishing. If you have any questions about copyright law or any other legal issues which affect your career, and require representation, please contact me: John J. Tormey III, PLLC; 217 East 86th Street, PMB 221; New York, NY 10028 USA; (212) 410-4142 (phone); (212) 410-2380 (fax); e-mail: brightline@worldnet.att.net.
John Tormey III is a New York lawyer who handles general commercial, transactional, and corporate matters. John is also admitted to practice law in California and in Washington, D.C. John's focus is in the area of entertainment, arts, and media, including endeavors to market artistic material to professional entertainment industry recipients. Prevalent client matters include new business start-ups, corporate and contractual work, employment, and frequent computer and Internet projects. Please feel free to contact John for his current law practice statement and submission guidelines.
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