Copyright protection in the United States is automatic upon the fixation of an original workof authorship (see the BitLaw discussion on obtaining copyrightprotection for more information on this point). However, even though it is not required,it is highly advisable that a work protected by copyright contain a copyright notice and beregistered with the U.S. Copyright Office. The use of the copyright notice and theregistration of a work are referred to as formalities and wereformerly requirements for copyright protection.
The discussion of the copyright formalities in BitLaw is divided into the followingsections:
- importance of the copyright notice
- form and placement of copyright notice
- importance of registration with the copyright office
- procedure for registration with the copyright office
- mandatory deposit requirements
Importance of Copyright Notice
Copyright notice is no longer necessary for a work to be protected under copyright law. Forany work published after March 1, 1989, the copyright notice is strictly optional, thoughhighly recommended. However, if a work was first published before March 1, 1989, copyrightnotice was required for the work to be protected under copyright. Works that were publishedwithout a copyright notice prior to this date may have lost all right to copyrightprotection.
Even though the copyright notice is no longer required, it should still be placed on allpublished works. Use of the notice is recommended for the following reasons:
- it informs the public that the work is protected by copyright (and thereby helps to scare aware potential infringers);
- it prevents a party from claiming the status of "innocent infringer," which mayallow a party to escape certain damages under the Copyright Act; and
- it identifies the copyright owner and the year of first publication (so that third parties will know who to contact to request a license to the work).
There is no need to register the work with the Copyright Office or to seek any other kind of permission before using the copyright notice.
Form and Placement of the Copyright Notice:
The copyright notice generally consists of three elements:
- The symbol © (the letter C in a circle), or the word "Copyright" or the abbreviation "Copr.";
- The year of first publication of the work; and
- The name of the owner of copyright in the work.
Example: © 1996 Jane Doe
If the work is unpublished, the appropriate format for the notice includes the phrase"Unpublished Work" and the year of creation.
Example: Unpublished Work © 1995 John Doe
The "C in a circle" notice is used only on "visually perceptible copies."Certain kinds of works--for example, musical, dramatic, and literary works--may be fixed notin "copies" but by means of sound in an audio recording. Since audio recordings suchas audio tapes and phonograph disks are "phonorecords" and not "copies,"under the Copyright Act, the "C in a circle" notice is not used to indicateprotection of the underlying musical, dramatic, or literary work that is recorded. Instead,a symbol composed of the letter "P" in a circle is used. Since computer softwareand apps for mobile devices are considered to be visually perceptible (with the aid of amachine), the copyright notice for software and apps should use the C in a circle format.
The notice should be affixed to copies or phonorecords of the work in such a manner andlocation as to give reasonable notice of the claim of copyright. For computer software, thecopyright notice is generally placed on the medium of distribution. If physical media is usedto distribute the software, the notice should be placed on the disk that contains thesoftware. If the software is downloaded, such as a mobile device app downloaded from an appstore, a copyright notice should appear on the page or screen that is displayed when theproduct is downloaded. In addition, it is wise to make the copyright notice visible on thescreen when the program is executed. One way of doing this is to include the notice on asplash screen that is temporarily shown when the program is initially executed.
Copyright Registration
Copyright registration is the process by which a formal claim of copyright is filed on a work withthe U.S. Copyright Office. Registration is not a condition of copyright protection, although itis a prerequisite for filing a copyright lawsuit on U.S. origin works. However, it is possible tofile a lawsuit on a previously unregistered work merely by filing an application for registrationimmediately prior to initiating the lawsuit.
Even though registration is not a requirement for copyright protection, the Copyright Act doesprovides several inducements or advantages to encourage copyright owners to file for copyrightregistration. Among these advantages are the following:
- If registration is made within 3 months after publication of the work, it is possible tocollect statutory damages and attorney's fees in infringement actions (otherwise onlyactual damages may be collected);
- If made before or within 5 years of publication, registration will establish prima facieevidence in court of the validity of the copyright and of the facts stated in thecertificate;
- Registration establishes a public record of the copyright claim and allows for therecordation of transfers of ownership of the copyright; and
- Registration allows the copyright to be used to prevent the importation of infringingcopies.
Procedure for Copyright Registration
An application for copyright registration may be made at any time during the life of thecopyright (see the BitLaw discussion on the duration of copyrights formore information). An application to register a work is made by submitting the following three items to the U.S. Copyright Office:
- a properly completed application form;
- a nonrefundable filing fee (see the Copyright Office website for more details on the fee); and
- a nonreturnable deposit of the work being registered.
There are a variety of copyright registration forms which can be used; the correct form dependsupon the type of work being registered:
- Form TX: for published and unpublished nondramatic literary works;
- Form SE: for serials such as periodicals or newspapers;
- Form G/DN: for a complete month's issues of a daily newspaper;
- Form PA: for the performing arts (musical and dramatic works, motion pictures, and other audiovisual works);
- Form VA: for the visual arts (pictorial, graphic, and sculptural works); and
- Form SR: for sound recordings.
The deposit is generally one or two copies of the best edition of the work. For computer programs,the deposit requirement is one source code print out of the first and last 25 pages of theprogram. For a program of fewer than 50 pages, the deposit is a copy of the entire program. In addition, provisions are included for blocking out important portions of the source code in orderto protect trade secrets.
Mandatory Deposit Requirements
Section 407 of the Copyright Act requires the "owner of copyright or of the exclusive rightof publication" in a work published in the United States to deposit copies of the work in theCopyright Office within 3 months of the date of such publication. Publication is defined by theAct as "the distribution of copies or phonorecords of a work to the public by sale or othertransfer of ownership, or by rental, lease, or lending." The mandatory deposit provision ensures that the Library of Congress has access to every copyrightable work published in theUnited States.
Failure to abide by this mandatory deposit provision has no effect on the copyright protectionavailable for the work. The only enforcement provision in the statute applies in cases where theRegister of Copyrights makes a written demand for the required deposit. If the required deposit is not made within 3 months of the demand, the person or organization obligated to make the depositis liable for a fine of not more than $250 for each work plus the retail price of the copies. Inaddition, if the refusal to comply is willful or repeated, an added fine of $2,500 may beincurred.
