They say that imitation is the sincerest form of flattery, and its not uncommon for successful sites and designers to find their work being appropriated by others, but when the hard work youve put into a project is blatantly ripped-off elsewhere it can really hurt, not to mention potentially cause damage your business.
Unfortunately the (US) Copyright Act of 1976 created a common misconception about copyright law that still exists today, some thirty years later. This misconception often serves as a trap that many a copyright owner, including web developers and designers, unknowingly falls for. What is it? Its the belief that “a copyright owner does not have to file a copyright application to protect its works…rather, copyright protection forms when the works are created.”
While technically true (copyright protection begins at the ‘publication’ of the work), taking a “I don’t need to file copyright applications” attitude can often come back to haunt you. The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.”
Here is where the “I don’t need to file copyright applications” strategy bites you…if registration is not made within that time limit, the only action you as a copyright owner can take against an infringer is essentially limited to:
- the Court ordering the infringer to stop infringing and
- damages in the amount of the infringer’s profits or the copyright owner’s loss (which are often the same thing).
As you can imagine, proving what your loss actually is or what monetary amount the infringer profited can be difficult, if not impossible. Further, the recovery of attorney’s fees and costs is not possible either, meaning that your actual recovery would be (profit or loss) minus attorney fees!
The result is that many copyright owners, when faced with infringement of a copyright they failed to register, are left in a position where tolerating the infringement is better than paying an attorney’s bill with no hope of recouping that expense in order to get the infringer to stop.
Know Your Statutory Rights
However, if you have complied with the requirements of the Copyright Act and actually filed a copyright application at the appropriate time, then the aforementioned “statutory damages” come into play.
What are these statutory damages? In the US they include: a sum of not less than $750 or more than $30,000 per work infringed; attorneys fees; costs; and, where the copyright owner can show that the infringement was willful, an award of up to $150,000 per work. As you can imagine, the threat of statutory damages (including attorneys fees) alone are often enough to force the alleged infringer to the bargaining table (a tactic that individuals sued by the RIAA are well aware of). As you can see, the availability of statutory damages often makes or breaks the decision of whether or not legal action is even a viable option.
Note: for those of you reading this outside the United States, if your country has entered into the appropriate copyright treaty with the United States (most have), then statutory damages for infringements in the United States are likely available to you as well (presuming you comply with your country’s registration requirements (consult with a local attorney for more information.
Are you convinced yet?
Did I mention that the fee for filing a copyright application is only $45? Of course, having a copyright attorney prepare the application for you (should you choose to have that done) will cost you more than that, but it isn’t uncommon for startups to assume the risk, read up on the topic and file their own copyright applications. More information about the U.S. registration process can be found on the U.S. Copyright Office’s Registration website
Another, related, registration question that you may have is “if I can’t file the application until the work is complete and ‘published,’ how can I protect my work?” This is a question that oftentimes applies to alpha and beta software testing. Luckily, the U.S. Copyright Office recently started a “preregistration” system that allows copyright owners to file what essentially is a temporary application with the Copyright Office. This “preregistration” allows the copyright holder to file a copyright infringement action even before the work is commercially distributed (and traditional registration is possible) should the work be infringed. http://www.copyright.gov/prereg/help.html
Whose right is it anyway?
Finally, web developers should remember that in the US the author of the work is the owner of the work unless the author has assigned his/her rights in writing, has a duty to do so based upon an employment agreement, or the work is one of the few other “works for hire” exceptions (”a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas”). So, when you are working with an independent contractor on your projects, it is essential that the written agreement you have with the independent contractor includes and assignment of his/her copyright interests to you. Of course, your intellectual property attorney could assist you in preparing the appropriate agreements for signature.
A few ounces of preventative medicine today may save you tons of copyright issues down the road.
What’s with all the question marks on the new lines?
?
I take it this is all US-only information?
Yes it is, although the principles are broadly the same as say the UK. I have asked a British lawyer for their perspective and will post it here soon.
I think UK Law is a bit different isn’t it?
United Kingdom copyright methodology - Wikipedia
Automatic protection - UK Patent Office
What precisely are we supposed to be copyrighting? I was under the distinct impression from previous legal counsel that layout / doc structure was not afforded copyright protection under US legal code.
I think in canada copywrite law is somewhat similar. anyone know where i can go to find more information for my country?
So, what about for blogs or online publications? Does this mean that for we can copyright our works for $45 per post? What if a content owner has 1000 plus articles? That is not cheap.
No, let’s DRM our posts!
Good article, minus the weird characters between the paragraphs (im getting boxes on IE6).
I was wondering the same as Scott. Should we be copyrighting all of our layouts, comps, articles, etc? It seems this issue is ripe for some updating by congres.
It would be great if you could write a compilation of european copyright standards. This topic has quite a wide range, but the US-only doesn’t represent the number of european readers. Also it would be nice to know, because i’ve never seen such a compilation and i think it doesn’t exist up to this day.
Hey, european readers maybe you can find more information about copyright in the EU at: http://ec.europa.eu/internal_market/copyright/index_en.htm. However I didn’t find anything about copyright registration.
How does the Creative Commons come into play?
[…] Copyright - get to know the facts if registration is not made within that time limit, the only action you can take against an infringer is essentially limited to: the Court ordering the infringer to stop infringing and damages in the amount of the infringer’s profits or the copyright ow (tags: Copyrights) […]
I’m looking forward to the UK view on this! thanks!
In the UK copyright is automatic, you merely need to add a copyright symbol © the name of the publisher and the publishing year. Once this is completed you will be covered by copyright protection. See the Government Patent website to witness this for yourself http://www.patent.gov.uk/copy.htm.
There are independent copyright registrars in the UK, but I believe these to be an unnecessary cost when covered under UK law by using the copyright declaration.
…Also according to the UK Government Patents website, adding the copyright declaration will cover you internationally, and in the UK adding the declaration is not even a prerequisite, you will be covered regardless! If a country is part of the WIPO (which the UK and US are) Add the copyright and your covered. Save your dollars America, would be interesting to see where Stephen Nipper got his information from.
Stephen,
thank you for this very interesting article. Clear words for an often underestimated matter.
Despite of the problem of giving proof of the ownership of copyrighted content, there is no formal possibility for [i]german[/i] authors or creators to register a certain content as oneself’s own created content. (You could deposit a copy of your work at a notary public, but this is your free will.)
On the other hand, each content is protected by law at the moment of its construction, you normally don’t even need a publishing, just write it down or paint it. (Except creations which need some kind of publishing, e.g. the show of a performance artist.)
Therefore, you will be able to claim damages without any formal registering, which contains lost profit of yourself or the profit ot the infringer [em]or[/] the average licence fee ( if your creation is normally lincenceable).
So, in Germany, the infringed author has got the choice. Not bad at all. Of course, quite special, lawyers costs and court fees will be payed by the infringer, if condemned to pay damages.
@Kevin Rapley: In Germany, you don’t need the copyright declaration, but it is helpful sometimes ( just to give a reference for your intellectual property and to warn others.)
It’s good to see an article with some relevant legal information in it on this site. It’d be really nice to see something based on patents.
But more on topic, who does the article belong to in terms of copyright — the author (Steven Nipper or Dykas, Shaver & Nipper, LLC ) or the publisher (Carson Systems)?
I think instead of just doing another article on the UK rights, maybe you should have included links for the other major countries in the original article. This could have started the snowball and then people can go and look at their own countries copyright laws….
You could have Australia, Canada, UK, Germany etc
But thanks for the write up and information.
How odd… I was just thinking about copyright issues today.
As a cartoonist, I can’t afford to pay $45 and go through the copyrighting process for each cartoon I make (several per day), so I have no choice but to rely on the “automatic copyright” rule. Nonetheless, this is a very informative article and is sure to be handy in the future.
[…] Here’s a great new article about copyrights on Vitamin. Not important, unless you create something and want it protected! […]
This doesn’t help me since I’m not in the US.
@ cono - I agree and that is why I suggested (above) that some links off other countries would have been a nice addition….
maybe you could post a follow on article with the details yourself ;)
The author is wrong when he says that copyright in a work is created at ‘publication.’ The current U.S. law creates a copyright when a work is ‘fixed in a tangible medium of expression.’ The publication of the work is not really the key. Say you create a blog post or online how-to article and some sleazy friend takes it from your computer before you post it online, you still have a copyright in the work (regardless of your failure to ‘publish’ it).
I would also mention that online works that are published daily or monthly (even if they are composed of multiple articles) may qualify to be registered as a serial or periodical. While this would reduce the registration cost, its probably still not worth it to most people.
On Brad Davis’s question:
The owner of the copyright in the above article could be any of those you mentioned. In this situation, the only way to know the who the copyright owner is, would be if you knew the details of the contract between the writer, his employer, and the publisher. It also brings up a good point about copyright notices. They are a good way to let the outside world that you consider the material to be protected but they also let others know who to contact about using the material (e.g., copying, licensing, etc.).
That’s why licensing systems like Creative Commons are so useful, otherwise the safest course is to avoid re-use, which is a shame if the copyright holder wanted his/her work to be re-used in some way.
The more clear info on a copyright holder, contact info, and their wishes for a work the better for everyone.
I’m confused. In the end the point is made in the US the author is the owner. If so, then why pay to get the copyright? If it’s already owned by me, what would I pay extra? I cannot say I get the point of this article.
Sorry I’ve been remiss in responding to the comments.
Upon rereading my post, Andreas/Edward are right. Copyright protection
attaches when the work is fixed, not “published.”
Regarding “layout / doc structure,” for copyright protection to exist, there
must be some minimum amount of artistic expression (literary, pictoral,
etc.) present. Typography, forms, tables, etc. are typically viewed as not
meeting this standard.
Regarding “1000 plus articles,” it is possible that they may (depending on
the facts) qualify as a serial or newsletter that would entitle you to file
a single (”group”) application covering them as a collective work. However,
it is my understanding that content like blogs do not qualify for “group
registration” treatment (let me do so research and see if I can find
additional information). In the meantime, those interested might review the
U.S. Copyright Office’s circular on Copyright Registration for
Online Works
.
very nice article, stephen.
I agree with Jermayn Parker, that an article with more information about major countries copyright rules, would be very interesting for the most readers.
Hello,
It’s interesting to see the issues of copyright being addressed on Vitamin. There have been a few comments asking about the situation in the United Kingdom. Own It, a not-for-profit intellectual property advice service has faqs, podcasts, sample contracts, events and 1-to-1 advice for all creative businesses - including web developers.
It’s a good place to start if you’d like to know more about how to protect your work.
Visit: www.own-it.org and send us an email if there’s a particular topic that you want us to cover.
Thanks,
Andrew
[…] Vitamin’s Stephen Nipper explains why you should take a proactive attitude towards copyright registration. (Link via xBlog.) […]
So what is the rule with website copyright display?
Is it:
- consistent with the US copyright rules for print so just include the date of first publication ©2005
OR
- since web pages are updated often and changing often the copyright should be current ©2007
thanks for any insight:
Jon Spooner™
Copyright Law :: Protected or Not?…
Copyright Law is indeed a slippery slope. Over at Vitamin, Stephan Nipper, writes on March 2nd, 2007 a post entitled Copyright: Get to know the Facts but having read the article I really must ask Attorney Nipper what exactly are…
This is good information regarding Copyright Act. But information is limited to US. If you can provide resources about Copyright Act for other countries, it will be a great help.
Thanks for this! I was wondering about this topic and luckily I stumbled into this article!
Also keep in mind that in some countries (Australia is one) there are specific ‘reverse engineering’ laws, which means that the internals of a copyrighted work can be studied for the purpose of creating another copyrighted work to interface or communicate with it, or to replace it if the original work is no longer maintained or supported. The specific rules vary, but such laws can potentially be used to copy your own work legally.
Thanks for the article. Here is my experience and top 5 benefits of registering for US copyright.
Carolyn…
I found this article to be extremely useful for me. Thanks!…
[…] You don’t have to register the copyright, but you probably should. “The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.” [Copyright: Know The Facts] […]
[…] You don’t have to register the copyright, but you probably should. “The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.” [Copyright: Know The Facts] […]
[…] You don’t have to register the copyright, but you probably should. “The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.” [Copyright: Know The Facts] […]
[…] You don’t have to register the copyright, but you probably should. “The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.” [Copyright: Know The Facts] […]
[…] You don’t have to register the copyright, but you probably should. “The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.” [Copyright: Know The Facts] […]
[…] You don’t have to register the copyright, but you probably should. “The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.” [Copyright: Know The Facts] […]