This is Tech

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In response to my open call for questions post, I received an email asking, “when does it makes sense to file a copyright?”

The short answer is that if you have a copyrighted work worth protecting, file early. Copyright applications are fairly inexpensive and (for better or worse) provide very long term protection.  By way of background, copyright is a form of intellectual property protection that is provided for “original works of authorship.”  This includes things like literary works (like books, screenplays, technical documentation, and computer software), works of the performing arts (like musical compositions and movies), visual art works (like paintings or photographs), and sound recordings.

Copyright protection exists automatically from the moment that a work of authorship is “fixed” in a tangible medium of expression.  This means that the work is recorded in some way, for example written down, or video recorded. So if copyright protection exists automatically, why would a company or someone want to spend the money and time to file an application?  The answer is that registration give you a variety of additional benefits that don’t apply automatically.

Benefits of Copyright Registration:

1. In the US registration is a prerequisite to filing a lawsuit against someone for infringement.  This means while your rights exist automatically, in order to enforce them you need to file.  You could wait until you need to sue someone to file your registration, but you would loose some additional rights that early registration offers.
2. The most important right afforded to early filers is the possibility of obtaining certain statutory damages (up to $100,000 per willful infringement) and recovery of attorneys fees.  In order to qualify your registration must be filed (i) within 90 days after the works first publication or (ii) before an infringement occurs.
3. Registration obtained within five years of initial publication provides prima facie evidence in a lawsuit that your copyright is value (including your ownership of the work).
4. If you have an opportunity to sell your copyright to a buyer, a copyright registration will be necessary to record the transfer of copyright.

So when is the right time to file for protection?  If you think it is likely that your work will be infringed, you should file within 90 days of publication.  If you have a large number of copyrighted works, it may not be practical to obtain a registration for each.  In this case, you might consider aggregating them into a collected work that you can register as one work of authorship.  For example, if you make posters, consider creating a coffee table book with pictures, and registering that.  When dealing with a work that is updated often, like software, it is impractical to seek registration every time you make a change.  With software, a good rule of thumb is to file a registration coinciding with each major release.  Remember, if you run a technology company, these copyrights and your other intellectual property are often where the real value is.  Some software companies are sold because they have lots of users, but most are sold because the buyer wants to use or sell their code.

My practice doesn’t focus much on filing copyright, patent or trademark application.  I primarily work with this stuff in terms of helping companies monetize their technology or in the M&A context, when companies are buying or selling each other.  It is surprising how many technology companies have no copyright registrations at all.  In practice, the lack of registrations rarely has much effect on the valuation that is given to the company when they are sold or raise money.  But sometime in the due diligence process, buyers will ask themselves “what are we really buying here?”  When that happens, it helps to have an itemized list of your registrations, to support the company’s value.

Copyrights are inexpensive protection.  Last time I checked the fees were $45 for a paper application and $35 for electronic filing.  If your works of authorship have value, this is a small price to pay to document your rights and make them enforceable.  There is a wealth of information on the copyright.gov website.  It can be a bit complicated, but all the information you need to file a registration on your own behalf is available on that site.  If you are dealing with valuable works of authorship I would recommend getting in touch with a copyright attorney, but if you have works that are less important, it is a worthwhile experience to get familiar with the copyright registration form, and file yourself.  Once you understand how to put it to use, you will have access to immensely affordable protection for your works.

Thanks to John for submitting this question.  If you have questions regarding technology and the law, please feel free to send them to me at submissions@thisistech.com.

And now I need to reiterate the disclaimer I made in my original post calling for questions:

These questions and answers are not intended to create an attorney-client relationship, so please do not send any confidential information as part of a question. I will only accept questions that are general in nature. That means if you have a dispute or deal pending with someone specific, don’t send it in.  The information in this article may not be applicable in your jurisdiction and you should see the advice of a lawyer before relying on anything you read here.