Entertainment Law – How To Register Your Copyrights2018-09-07
You’ve created a song and want to protect your rights in it. As you may know, your song (or your short story, painting, etc.) is protected as soon as it is “fixed in a tangible medium of expression,” which means as soon as it’s written down, video taped, recorded, etc. Even without registering the copyright with the U.S. Copyright Office, you have certain rights in your song. You can potentially stop others from using it. But, there are three main additional benefits to registration:(1) it creates a presumption of ownership and validity, so long as you register within five years of the date on which you release the work to the public;(2) if you register the work before it is infringed, or in any case within three months of the date of publication, then you may be entitled to statutory damages and attorney’s fees; and(3) you don’t have to wait to bring suit against an infringer (registration is almost always a prerequisite to bringing suit).Fortunately, registration is both cheap (especially compared to its potential benefits) and easy. There is no reason why you can’t register your copyrights yourself. In fact, while usually government websites are an absolute mess, the first place you should visit is the Copyright Office’s website. There you will find a wealth of well-organized information, including some so-called “circulars” which explain everything from the nature of copyright to the exciting world of vessel hull registrations. However, what follows is a plain English explanation of the registration process and some helpful tips on registration generally.The Cost of Registration and the Benefits of Filing OnlineIf you’re reading this article, then you probably have access to the internet. That’s good news, because filing your registration online with the Copyright Office only costs $35 per registration. To file online, visit the Copyright Office’s website and click on the eCO Login at the top right of the screen. Before proceeding, you must register as a user (which you do by providing some basic information and creating a username and password). Once you register as a user, you will be able to log in and file your registration online-you can even upload documents to satisfy your deposit requirement (more on that later).Now, for the sake of completeness, I’d like to point out that you can still file your registration the old fashioned way, using real paper. The next cheapest method of registration is the Fill-In Form CO. Like it’s name suggests, this is the same form you would use if you eCO filed, it’s just provided to you in a form where you can print it out and fill it in and mail it back to the Copyright Office. However, for that privilege the Copyright Office charges you $50.If you are really old school and want to register using the old paper forms, then you may do so for a fee of $65. The only real difference between these forms is the price. Clearly the Copyright Office wants to eliminate paper as much as possible, and the old paper forms are priced higher than the Fill-In Form CO because the latter use special barcode technology that enables the Copyright Office to process them more easily. If you can, then you should save money and time by eCO filing.Having registered as a user, you are now ready to begin registration. There are three elements to a successful copyright registration: (1) completion of the eCO Form; (2) payment of the registration fee; and (3) the submission of deposit materials.The FormOnce you create a user profile and log into your account, click on “Register a New Claim,” and then “Start Registration.” There are 12 parts to the application, most of which require some input from you, as described below.(1) Type of WorkNaturally, you must tell the Copyright Office what type of “work” you are registering. By “work,” the Copyright Office means the thing being registered. There are seven categories of works, and the work you are seeking to register must fit into one of them:Literary Work. Examples include books, computer programs, compilations, instruction manuals, and speeches.Work of the Visual Arts. Examples include sculptures, paintings, photographs, murals, bumper stickers, decals, cartoons, games, greeting cards, and jewelry.Sound Recording. Examples include any audio recordings (e.g., of music, songs, and audio books).Work of the Performing Arts. Examples include ballets, operas, and musical compositions.Motion Picture/Audiovisual Work. Examples include videos, films, and television recordings.Mask Work. Examples include semiconductor chip registrations (yes, you can register the copyright in those, too).Single Serial Issue. Examples include periodicals, newspapers, magazines, bulletins, newsletters, and journals.Usually, you’ll know right away which category you work fits into (and you can only pick one). But the plot thickens if you are, for example, seeking to register a book that contains a few photographs in it. In that case, you have on your hands what is referred to somewhat cryptically by the Copyright Office as a “work that includes more than one type of authorship.” The Copyright Office advises you to pick the authorship that predominates the work.In other words, is it mostly a book that has a few photographs in it? If so, then register it as a literary work. Conversely, if it is mostly a book of photographs that has some limited accompanying text, then register it as a work of visual art. Note that no matter how you decide to designate the work, all the elements contained in it will be protected. In other words, you won’t have to register the same work as both a literary work and as a work of the visual arts in order to protect it. What if the forms of authorship are truly equal? Well, just pick the one you like best. So long as you properly describe your contribution to the work in subsequent sections of the eCO Form, you’ll be covered.The one exception to that rule is for songs. As you may know, songs can be divided into different copyrights. You have the copyright in the sound recording, which is the recorded version of your song, and you have the copyright in the musical composition, which is the elements that comprise the song, i.e., the melody and lyrics. In the olden days, you had to register the copyright in the sound recording (as a sound recording) and the copyright in the musical composition (as a work of performing art).Assuming you own both copyrights yourself and did not transfer them away, you only have to register the copyright in the sound recording, and then make sure you properly describe your contribution to the work in a way that includes the performance art elements, and you can obtain protection under both categories. Note, though, that you cannot choose the work of performance art category and then claim the sound recording copyright too. You must choose the sound recording category in order to capture both copyrights.(2) TitlesLet’s say you picked Sound Recording and pressed “Continue” at the top of the screen. Next, you must title the work. Remember to be careful when entering in the name of the work-the name must exactly match the name as it is used on the product you distribute to the public. Add the name and take a minute to verify that it was entered in correctly. If so, click “Continue” to proceed. (You’ll have a chance to verify this information later.)One question that particularly musicians ask is whether they must file separate copyright registrations for each song on the album (which could get prohibitively expensive). The short answer is no. The Copyright Office does allow you to register songs as “collections.” So long as you are the author of all of the songs (either the sole author or one of the contributing authors), then you can register as many songs as you want at once.Note, though, that certain restrictions may apply depending on whether the collection of songs is published or unpublished and whether the ownership in the copyright is the same across all works. These nuances are beyond the scope of this particular article, but you can always contact an attorney if you have any specific questions relating to that subject.I will provide one word of caution with respect to registering songs in collections. You can only claim one instance of copyright infringement per collection. This means that someone could steal every song in your collection, but because you registered the songs as one collection, you can only collect damages for one act of infringement. Conversely, if you had registered all of the songs individually, then you could collect damages for as many of the songs as were infringed. I do understand that most musicians can’t afford to register 12 separate songs.My suggestion is to register songs in collections, but then also submit separate registrations for songs designated as singles. Or (and this is a riskier solution) wait and see which songs from the record are popular and then register the copyrights in those. This way, you get the extra protection of an individual copyright registration, while also protecting the other songs in the collection.(3) Publication/CompletionWhether or not a work has been “published” affects what you will need to submit to the Copyright Office in order to register the work (what you must submit is known as the “deposit requirement,” and it is one of the three elements you need to successfully register a copyright). The Copyright Office says publication results from:[T]he distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. A work is also “published” if there has been an offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display. A public performance or display does not, by itself, constitute “publication.”Admittedly, that’s a confusing definition in that in leaves a lot of questions unanswered. For example, is a work “published” if you post it online? The answer is “probably,” but it depends. The above definition also does not specifically contemplate electronic transmissions, but you can reasonably assume that if you post something on the internet, it has been distributed to the public when they view that image on their computers. Still, if you posted the work on your private website that only certain people can access, then maybe it hasn’t been published as that process is defined above. Ultimately, you must decide that question yourself.Whether or not a work has been published, and if it has, then when it was first published, does have a bearing on the copyright registration. In the interest of space, I won’t get into the nuances of those issues (although feel free to contact me if you have any specific questions). However, the question of how a work’s publication status affects what deposit materials you must submit is addressed in more detail below.Now, let’s say you selected “yes” to the question of whether the work has been published. You must then complete a form that prompts you to enter some additional information, including the date on which the work was originally published. If you don’t have an exact date, don’t worry: just make an educated guess.(4) AuthorsThe author is either the person who created the work or the organization that was the author if the work was made for hire. If more than one person contributed copyrightable elements to a work, then you’ll need to list the various authors. First – if you are the author or one of the authors – click “Add Me.” Then, select your contributions to the (in this case) sound recording.Let’s say you wrote the lyrics, produced the track, performed on the recording, and-because you self recorded and didn’t transfer your copyright in the sound recording to a record company-you own a portion of the sound recording. Then you’d select those four boxes from the menu. If you need to add other authors, then you may do so, listing their names and then selecting their respective contributions. Let’s say you need to add Bob as an author. Bob wrote the music to the song, performed on the song, and owns part of the sound recording. Then you’d select those boxes for Bob. And so on and so forth for any other copyrightable contributions made to the sound recording.Note that I use the word “copyrightable” intentionally because the contributions you’re registering must at least be sufficiently original to warrant copyright protection in the first place. For example, the guy who cleans the studio at night might be integral to your creative process, but he did not contribute copyrightable elements to the sound recording by merely being present in the studio. Now, if he picked up an instrument or suggested a chord change, then that is another issue. In fact, you’ll notice that this “authorship” situation can get a little messy. Some bandleaders chose to have their musicians sign work for hire agreement in which they assign their rights in the music to the bandleader. This practice protects you down the road if your song becomes a hit and suddenly the guy who contributed handclaps to the record thinks he deserves part of the copyright in the song, and therefore part of the money it’s bringing in. But, again, that’s the subject of another article.(5) ClaimantsThe “claimant” is either the author or the organization to which the author transferred the entire copyright. The claimant will often be the same person as the author of the work. For example, if you are registering your own song, and you own the rights to it, then you would be both the author and the claimant. But sometimes a record company will make you transfer the copyright in the sound recording to them. In that case, they would list you as the author of the work, but then list themselves as the claimant. If you are the author and retain the copyright and you are the claimant, then click “Add Me.”(6) Limitation of ClaimDoes part of your song include an old folk song that is in the public domain, i.e., it’s a folk song from the 1800s and you are using you own arrangement of it? Here is the portion of the registration where you would want to list that information. Maybe your song contains a sample. Or maybe you re-wrote a song of yours that you had previously registered. Usually, you’ll just leave these fields blank, but in the event one of these exceptions applies, you’ll need to enter the information requested accordingly. Although you want to answer these questions honestly, you ultimately want your claim to be as broad as possible, so make sure you aren’t listing any unnecessary limitations here.(7) Rights & PermissionsWhat if someone hears your song and wants to use it in a blockbuster movie starring Will Smith’s son, Jaden? The information you list on this portion of the form will allow that person to contact you directly to license it from you. Or, if you’d prefer they contact someone else, you can list that information too. Maybe you have a company that handles such requests, or an attorney. List the appropriate entity, and keep in mind that the information you list here becomes public information, so only use your home address if you’re comfortable with that. If not, then find a third party agent to use or acquire a post office box. Click “Add Me” if this is you and you don’t mind your address being used.(8) CorrespondentAgain, this is probably you-the correspondent is merely the person the Copyright Office will contact if it has questions about the application. Sometimes this field will be occupied by your attorney’s contact information if he or she is completing the application for you. As before, click “Add Me” if this is you. This information will not appear in the public record, so you can use your home address if you’d like.(9) Mail CertificateThis is where the Copyright Office will mail your fancy certificate once your work is registered. Click “Add Me” if this is you. This information will also not appear in the public record, so you can use your home address if you’d like.(10) Special HandlingRemember how I told you that one benefit of early registration is you’ll be ready if someone infringes your copyright? If you don’t register before the act of infringement, then you’ll have to register in order to bring suit. And you can’t bring suit until you have the registration in hand, unless you live in a jurisdiction where only filing is required. Which means you either have to wait up to eight additional months, or you pay $760 on top of the $35 registration fee to have the registration expedited. If you have to do that, here is where you ask for it. You must have a “compelling reason” for the expedited registration. One of the listed “compelling reasons” is pending or prospective litigation. Select if appropriate. If you don’t need special handling, then skip this portion of the form.(11) CertificationHere is where you swear that all the information you entered is correct.(12) Review SubmissionHere is where you double-check all of your information.The FeeOnce the above steps are completed, you’ll need to pay. Here is where you do that.The DepositNow that you’ve fully described the work and provided other relevant information-and of course after you’ve paid Uncle Sam-you must satisfy the Copyright Office’s deposit requirement for the type of work you’re registering. Unfortunately, knowing what to submit is not easy. The general rule for deposit materials is that if the work is unpublished, then you must submit one complete copy of the work, and if the work is published, then you must submit two complete copies or the “best edition” of the work.If you’re registering a Sound Recording, then this requirement is fairly easily met-simply submit either one or two copies of the sound recording on a CD (or upload the tracks if that is an option). Similarly, for a literary work, you would simply mail or upload either one or two copies of the novel, poem, etc. However, if you’re attempting to register visual art, then this requirement become a little confusing and in some cases very burdensome.First, remember that displaying the work publicly, without more, does not necessarily constitute “publication.” So if you’re registering that painting you have hanging on a wall of an art gallery, then you’re probably registering an “unpublished” work, and as such will only have to submit what the Copyright Office refers to as “identifying material,” i.e., a photograph clearly depicting the complete work.On the other hand, if you had prints of the painting made and are selling them, then you have most likely “published” the work, and now you must submit two complete copies of the work (which in this case would be the prints you are selling). Similarly, if you’re registering a three-dimensional sculpture, or artwork that is attached to a three-dimensional object, then whether the work is published or not, you still only need to submit identifying material, because submitting a copy is not practical.Sound confusing? Fortunately, the Copyright Office provides a handy little chart, which does a good job of describing what deposit materials are needed for each kind of visual artwork. However, note that even if-according to the chart-you must submit a complete copy of the work, you may still seek relief under 37 CFR § 202.20(d)-(e). Basically, those statutory provisions allow you to ask the Copyright Office to waive the deposit requirement for you due to special circumstances-e.g., if for whatever reason the work is just not capable of being copied or it would be overwhelmingly burdensome for you to have to copy it. However, you must affirmatively ask for such special relief in writing, and of course your request must be granted in order for your registration to proceed.Final ThoughtsRemember that, while you don’t technically have to put the “(c)” on the work in order to retain copyright protection, you should, as it puts the world on notice that a copyright is claimed. That notice can prevent a defendant from claiming innocent infringement in a court of law, and the presence of the notice may also bolster your argument for willful infringement, which would very significantly increase your damages. Make sure to put the “(c)” followed by the year of publication and then your name.Finally, note that the date of your registration is not the date you receive your certificate of registration, but rather the date on which the Copyright Office receives what they need to register the copyright. If you completed the eCO Form correctly, then that should be the day you submitted the completed online application. That’s it! Your work is on its way to being registered by the Copyright Office. Now go celebrate by creating (and then promptly registering) more art. I use the word “almost” here because some jurisdictions do allow you to initiate a lawsuit upon the filing of your registration. However, you’ll need to consult case law to determine whether your jurisdiction is filing-only jurisdiction. An attorney can help.Specifically, Forms PA, SR, TX, VA, and SE, which stand for performing arts, sound recordings, literary works, visual works, and single serial issues, respectively. While those forms are not used as much these days, the distinction between the various types of registrations is important, as will be seen. The “best edition” applies if the work has been published in different editions, in which case you would submit whichever edition was larger, was printed on better paper, had more colors, etc.