Copyright: When Are you Protected?

You finally did it. You created your masterpiece. Congrats! Did you register the Copyright? No? Did you put the copyright symbol somewhere on your work? You didn't? Does that mean you're not protected? Let's dispel one of the biggest points of confusion surrounding Copyright protection.

Back in this post we discussed the six exclusive rights you acquire when you are a copyright owner. But we need to discuss when exactly you become a copyright owner. The answer is actually very simple: copyright protection arises as soon as the creation is first fixed in a tangible medium of expression. That's right. You have a copyright and are entitled to copyright protection and all the rights that go with it as soon as you have it in a tangible form.

Now you know by now it's never that simple when the law is involved. So let's discuss this in some more depth. To be eligible for copyright protection, a work of authorship must meet three requirements:

1. It must be fixed in a tangible medium of expression. This means it must be written, recorded, printed, saved, etc. Basically, any medium from which the work can be accessed will qualify. So no, that brilliant idea for a novel you have in your head doesn't count.

2. The work must be original. It doesn't have to be high-quality or unique, it just has to be created by the person who is claiming copyright protection; and

3. The work must contain a minimum level of creativity. The standard of creativity is low so basically any original work of authorship that you develop for your business would qualify.

So as you can see, as long as you have an original idea with a minimum level of creativity that you save in some sort of tangible form, you have a copyright!

Now what about all this business about registration and copyright symbols.

First, the copyright symbol, which is one you've definitely seen before. It features a "C" enclosed in a circle followed by the name of the author and the year of publication. Often times it will be followed by the words "All Rights Reserved". Even though this symbol is not required by law, it is still recommended to put others on notice that the work is protected. This prevents third parties from later claiming innocent infringement in an attempt to avoid liability. To protect yourself, always display your copyright symbol prominently.

If you plan on using someone else's work in any way, be sure to reach out to them first for permission. Knowing what you just learned above, you can never assume something is not protected just because it doesn't have the copyright symbol.

Now what's the deal with registration? Ok, so registration is not required for your copyright BUT you cannot pursue an infringement suit in the U.S. without having the copyright registered with the Register of Copyrights in Washington D.C.

Ideally you will have registered the copyright before the alleged infringement occurs but if you haven't, you can still register after. But here's the thing...certain remedies will not be available to you if you register your copyright after the infringement occurs. Here's the rule:

In order to receive statutory damages and attorneys' fees from the infringer, the copyright must have been registered before the infringement occurred or within three months of publication of the work.

Statutory remedies are capped at $30,000 for each work infringed upon unless it's a willful infringement which is capped at $150,000 for each work. These statutory remedies are generally sought when the actual damages (the amount of money they gained or that you lost due to the infringement) is low or hard to calculate. If the copyright holder has a copyright that was timely registered, they can seek either actual damages OR statutory damages, but not both.

So there you have it! You ARE a copyright owner as soon as the work is fixed in a tangible form but there are some major benefits to both displaying the copyright symbol and registering your copyrights.