Copyright 101

When must I file a copyright application?

Those who are familiar with the rather strict time limits for filing a U.S. patent application may find it to be a pleasant surprise that under the U.S. copyright law, a copyright application can be filed many years after the initial publication of a work and still be eligible for a copyright registration.

This does not, however, mean that you should put off filing your copyright registration. Stated differently, even though there is no particular time limit for filing a copyright registration application, this should not lull the author into a false sense that copyright registration is unnecessary or that it need not be done promptly. The registration of a U.S. copyright offers many benefits to the owner of the copyright. For example, it creates a presumption that ownership of the copyright is as set forth in the registration. In addition, if you happen to have the good luck that you registered the copyright on a date earlier than the date of an act of unauthorized copying or under certain other circumstances set forth in the copyright law, if you prevail in court against the unauthorized copier, you may find yourself eligible for statutory damages and for recovery of attorney’s fees. The damages and attorney’s fee benefits that come from registering a copyright in advance of infringement are so great, and the cost of registering a copyright is so small, that it is wise to attend to copyright registrations promptly.

Many people successfully file copyright registration applications on their own, without the assistance of counsel. However, some authors find it convenient to pay someone else to do it for them simply to avoid the paperwork. Additionally, those whose authorship is in computer software may wish to retain competent counsel to assist them in filing registration applications, since filing the application incorrectly could conceivably result in loss of trade secret rights, or, in an extreme case, could result in loss of all copyright rights. For example, there are steps in which may be taken in filing a copyright registration application in software which preserve trade secrets that are contained in the software.

Additionally, since most software is produced in versions, with each version based in part on previous versions, there are certain disclosures which must, under certain circumstances, be made in the registration application to acknowledge the older content. To give one example, the owner of the dBase programming language came very close to losing all copyright rights in the language due to failure to disclose that portions of the work were based on older works.

Can I register a copyright myself?

Many types of copyright registrations are easy and straightforward to do, in which case a layperson can obtain copyright registration for a few dollars and a bit of one’s time. In the area of computer software, however, it is often helpful to retain experienced counsel to prepare the copyright application. The reason for this is that for any copyright registration application, there is the requirement that the applicant deposit a copy of the work with the Copyright Office; the deposit becomes available to the public. In the particular case of software it is possible to deposit less than all of the work, which helps to protect trade secrets. (The Copyright Office has a helpful circular on this subject, in PDF format.)

Experience is helpful in determining what, exactly, needs to be deposited with the Copyright Office. Advice of experienced counsel is also helpful in determining whether the application is complete, e.g., whether it needs to disclose previous works upon which the present work is based. Failure to disclose prior works runs the risk that copyright protection will be lost later. Another trap for the unwary is characterizing a work incorrectly as a work-for-hire when it is not; this, too, runs the risk of later loss of copyright rights.

What does it cost to register a copyright?

Here are the published filing fees of the U.S. Copyright Office as of 2006. To the best of my research, these fees are still in effect in 2007, but fees are subject to change. Also note that private companies or Web sites might do the registration for you for an additional fee. To enforce a copyright in a different country, you may be required to register there as well.

For a single work (Form TX, PA, VA, SR, or SE): $45 per application

For a group of serials or newsletters (Form SE/ GROUP): $25 per issue ($50 minimum)

For first appeal of denial of registration: $250

Registration of a group of published photographs: $45

Recording of a document (including assignment of ownership or exclusive licenses): $95 (plus an additional $25 for each additional 10 titles)

The Copyright Office will do a registration on an expedited basis as well; for example, if litigation is imminent. An extra fee must be paid and the application has to be submitted to a different address for expedited registration. The factors described above explain why the lawyer’s fees in a software copyright registration application are likely to be at least $200-$300, exclusive of copying and courier charges.

The Copyright Office is part of the Library of Congress (202-707-3000).
For more information about protecting intellectual property go to the U.S. Copyright Office .

Source: SBA Publications