By Travis Townsend
About a month ago, one of my partners came into my office and plopped down in the chair across from my desk. It was a busy afternoon so I did not pay him much attention until he said, “I finally found you guys’ hustle.” I quickly glanced at him but did not stop typing. “What are you talking about?” I asked. “The I.P. hustle,” he explained between bites of the sandwich he was finishing, “you know, services that I.P. attorneys offer that your clients do not really need.” I stopped typing and looked up from my computer screen, curiosity piqued. “Okay, you have my interest. What is the I.P. hustle?” “It is copyright registrations,” he said, apparently proud, “I just found out that everyone owns copyrights in their written product the minute it is written down. My thought is, if you already own the copyright, registering the mark just records the property you already own. It is a bit like registering software after you purchase it. It is a formality. Why pay for a formality? Am I right or am I right?” I chuckled and went back to typing, “Not even close my friend.”
Many people have the same understanding of copyright law as my partner. Consequently, many people reach the same conclusion as my partner. The problem with their understanding of I.P. law is not necessarily that it is incorrect, but that it is incomplete. A more complete understanding of copyright law suggests that a federal copyright registration is not only very valuable, but that it is, in many instances, a business necessity.
My partner’s general understanding is basically correct. Copyrights protect original works of authorship that are fixed in a tangible medium of expression. For a work to be “fixed,” it must be sufficiently permanent or stable to permit it to be perceived, reproduced, or communicated for a period “of more than transitory duration.” Copyright law would recognize a work as being “created” as soon as it is fixed in a copy for the first time. Consequently, the minute you write down the verses to a poem you came up with or audio-record a song that you created, you have protectable copyrights in those works. On that front my partner was correct.
Much of a copyright’s “bite,” however, lies with its registration. First, a copyright owner cannot sue for copyright infringement unless the owner has a federal registration for the infringed copyright. Obviously, a copyright that cannot be enforced in court has severely limited value. Second, a copyright registration establishes a public record of the copyright claim and provides deterrent effects. Preventing infringement is likely the most cost-effective method of protecting your work. Third, if the copyright work is registered before or within five years of its publication, the registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate of registration. Fourth, if the copyright registration is made within three months after the work is published or prior to an infringement of the work, copyright owners can recover statutory damages and attorney’s fees in a court action. Fifth, copyright registration allows the owner of the copyright to record the registration with the United States Customs Service for protection against the importation of infringing copies.
Obtaining a federal copyright registration is generally advisable for any work of significance. Obviously, practical considerations prevent the registration of every copyrighted work. A qualified I.P. attorney should be able to assist in determining whether a copyright registration is appropriate in your case.