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The Protection of Copyright Law for Writers

Posted by Giselle Ayala | Mar 05, 2021 | 0 Comments

Unlike other carriers, the carrier of a writer is a long-term journey that requires patience and resilience. Good writing requires many drafts, the design of an engaging story, the selection of a good theme, and interesting characters' development, among others. Considering this, one of the worse fears of a writer is to have their work stolen.  U.S. Copyright Law protects the work of writers. Pursuant to the Copyright Act of 1976 §102, the law protects original works of authorship fixed in any tangible medium of expression; iIn other words, works, writings, that are the result of the independent work of its author and which are fixed in a medium that allows the work to be perceived, reproduced, or otherwise communicated.

The requirement of fixation

Whether a writer creates his work by hand or on a computer, it does make a difference. Once a work has been created, the author is the copyright owner, and the law protects her rights. "Fixed" means that the work is in a tangible medium of expression, by or under the authority of the author, and sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 

What does copyright protect?

Copyright protection allows a writer to control the copy, reproduction, display, performance, or any other unauthorized use of her work. This copyright protection also covers the author's right to control the use of her work to create derivative works. According to § 101 of the Copyright Act, a derivative work is A “derivative work” is a work based upon one or more preexisting works, such as a translation, dramatization, fictionalization, motion picture version, or any other form in which a work may be recast, transformed, or adapted. Here it is important to note that editorial revisions annotations, elaborations, or other modifications of a work, which, as a whole, represent an original work of authorship, are considered derivative works too.

Is registration necessary?

Copyright protection exists once a work has been created and "fixed. Registration is not a pre-requisite. However, registration is necessary to exercise certain rights and to enjoy certain protections of the law.

The first aspect of registration that it is important to highlight is that registration creates a public record of ownership for the author. Especially in cases where writers share their work in some form, ask for revision or opinion, or involve another in the creative process, ownership is often at issue. Having a public record of ownership is crucial because even if an alleged infringer does not claim to be the creator, the copyright owner has the burden to prove that she is, in fact, the author and valid owner of the work subject of the litigation. This is a prerequisite to prevail on a claim of copyright infringement. Finally, registration can serve as an effective defensive tool to disincentivize infringement by those "would-be" infringers who are sophisticated enough to check copyright registrations.

Second, copyright registration creates a presumption of ownership. Even though litigation can be very exhausting and demanding, when a party has presumption supporting her claims, the litigation can be easier. A presumption is a fact that the law understands as true unless evidence to the contrary is provided. A copyright registration creates a presumption of ownership; in other words, it is prima facie evidence of the validity of the copyright interest the author defends. Courts have recognized that registration taking place before or within five years of the publication of a work creates a presumption of validity in favor of the author. In copyright litigation, a presumption can be particularly valuable, especially if an infringer is causing serious, irreparable harm and the author needs an immediate court order restraining or instructing the alleged infringer to stop its unlawful conduct.

Third, you can't go to court without a copyright registration. Under § 411 of the Copyright Act, "...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made...". In other words, a copyright owner can only file a lawsuit to enforce or to protect her copyright interest after the U.S. Copyright Office has issued a registration. It is crucial to understand that the U.S. Copyright Office can take up to seven months to issue a copyright registration. Now, the author can request expedited consideration; however, this option involves additional costs. 

Fourth, copyright registration is a prerequisite to request statutory damages or attorney's fees. Pursuant to § 412 of the Copyright Act, authors that register their work prior to infringement, or within three months after publication of the work, are eligible for an award of statutory damages. The particularity of statutory damages is that a judge or jury can award them to a copyright owner without proof of the author's actual amount of damages.  Statutory damages can range from $750 to $30,000 per work infringed, and the copyright owner has the possibility of recovering up to $150,000 per work in cases of willful infringement. If a copyright owner cannot request statutory damages, the copyright owner must prove actual damages. Copyright registration also allows a copyright owner to recover attorney's fees. This is of fundamental importance because copyright litigation can be very expensive; moreover, some attorneys may work on a contingency basis, but many others work on an hourly basis. 

Finally, copyright registration allows a copyright owner to prevent the importation of infringing works. In today's technological world, the possibility of having your work stolen online and reprinted in another jurisdiction is not odd. If that happens, the second worse scenario would be that your work is illegally imported to the U.S. The owner of a registered work is eligible to participate in a U.S. Customs and Border Protection (“CBP”) program where the CBP will seize and detain imported goods that violate intellectual property rights in the United States. Registration is required to participate in this program.

The Copyright Notice

As we have already explained copyright exists automatically for authors and copyright registration is the tool that materializes in a more effective way the benefits of copyright protection. However, it may not be enough. For that reason, a copyright notice is equally important. Now, it is worth explaining that as of March 1, 1989, it is no longer necessary to put a copyright notice on works to enjoy protection. Nevertheless, it's a good idea to use use the copyright notice to inform the public about the author's ownership and the existence of protected interests. Additionally, when a copyright owner has used the copyright notice, infringers are not able to claim that they didn't know the work was copyrighted. When it comes to litigation, the existence of copyright notice can be very valuable. In copyright infringement cases, "innocent" infringers receive substantially less punishment than willful infringers.

The proper copyright notice

A proper copyright notice contains three elements:

The copyright symbol (c) or the word "copyright" + The name of the author + The year of creation or publication. 

Fair Use

Finally, after discussing the writes and benefits of copyright protection, it is also important to understand that there are certain scenarios where authors may not exercise their copyright privileges in the same manner.  These scenarios are usually those where third-party use is protected by the fair use doctrine. Under the "fair use", which is a full defense to a copyright infringement claim, the law allows the limited use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research without the consent of the copyright owner.  To know whether fair use applies courts look usually consider four factors:

  1. The purpose and character of the use, such as whether it is commercial or not-for-profit;
  2. The nature and character of the copyrighted work; for instance, less protection is given to factual works; 
  3. The amount used in relation to the copyrighted work as a whole, and 
  4. The effects the use will have on the market or value of the copyrighted work. 

About the Author

Giselle Ayala

Giselle Ayala Mateus is a NY attorney with comprehensive experience in transactional law, creative agreements, business formation, and immigration law. She is also the founder of Focus Juridico a not-for-profit project focused on supporting Latin American entrepreneurs and artists.

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