There are three general categories of intellectual property that can be protected under U.S. law: Trademarks, Copyrights, and Patents.
Trademarks protect a business' name, logo, or slogan from use by other businesses. Patents protect a discovery, invention, or idea. Copyrights protect original works of authorship such as writings, photos, music, movies, software, and architecture.
Original works of authorship may be copyrighted whether they are published or unpublished. Your work is protected by copyright automatically as soon as it is "fixed in a tangible medium." This does not mean that a hard-copy of your work needs to be created in order to receive the benefits of copyright protection. So long as the work can be perceived with the aid of a device such as a computer, the "tangible medium" requirement has been met.
Even though your copyright exists as soon as the work is created, we usually recommend registering your copyright with the U.S. Copyright office. You cannot file suit for copyright infringement until your copyright has been registered. Although it is possible to register your copyright after the infringement has occurred, you will not be able to obtain statutory damages or attorneys fees if you file after the date of infringement except when the post-infringement registration occurs within 3 months of the date of publication. Typically, copyright infringement suits are not economically feasible without the ability to be awarded statutory damages and attorney fees. This makes registration particularly important.
Additionally, if you register your copyright within 5 years of publishing your work, the registration serves as prima facie evidence of your right to the work. This means that if your right to the work is disputed, the other party claiming ownership will have to overcome a significant burden of proof in order to defeat your copyright registration.
In order to register your copyright, you must submit the proper application form along with a copy of the work to the U.S. Copyright office along with a fee for registration. The U.S. Copyright office recommends submitting the application online for speedier processing times. However, even if you apply for your copyright online, you must submit a hard-copy of your work to the Library of Congress. Your hard-copy can be submitted in printed form or on a CD-ROM. Flash drives, floppy disks, and other removable media are not acceptable.
If you register online, you will receive an e-mail confirmation that your application has been received. You will not receive any confirmation that a hard-copy registration has been received by the U.S. Copyright Office.
The time required for the U.S. Copyright Office to approve your copyright varies based on how busy the office is at the time. However, for online application, the process tends to take approximately 8 months. For paper filings, the process can take up to 14 months.
Your copyright registration will be effective as of the date that your application was submitted properly, not as of the date that your copyright is approved. Because the process can take several months, it is important to work with an attorney to submit your application in order to ensure that your application is not denied due to a procedural defect and that the application process will not have to be restarted from the beginning.
You can submit unpublished works as a collection under a single copyright application if the following requirements are met:
You can submit published works as a collection only if they were published as a collection and additional requirements are met, based on the type of work.
For example, for photographs to be registered as a collection, you must meet the following additional requirements:
For contributions to periodicals, you must meet the following additional requirements for registration as a collection:
Other types of collections require you to meet different requirements and to follow different procedures, which are beyond the scope of this article.
You should be aware that submission of works as a collection does not offer "blanket" protection to other works in the same series that have not been physically submitted as part of the copyright application.
Does "The Poor Man's Copyright' Work?
Some people mistakenly believe that sending a copy of your work to yourself will offer the same benefits as copyright registration. This is known as a "poor man's copyright," and is NOT effective.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: