Editor’s Note: José Cortina is a member of the Research Triangle Park law firm of Daniels Daniels & Verdonik, P.A. TechLaw is a regular feature in Local Tech Wire.
_______________________________________________________________________________________United States law grants copyright protection to original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.

Works of authorship generally include: 1) literary works; 2) musical works, including any accompanying works; 3) dramatic works, including any accompanying music; 4) pantomimes and choreographic works; 5) pictorial, graphic and sculptural works; 6) motion pictures and other audio/visual works; 7) sound recordings; and 8) architectural works.

In other words, copyright protection applies to books, letters, magazines, pictures, post-cards, statues, manuscripts, music scores, films, cds, dvds and the like.

Computer programs are also subject to copyright protection even though not specifically listed since the courts have interpreted the statute to include them as “literary works.” Generally, copyright protection applies to the way an idea is expressed and does not extend to the idea itself.

No registration is required for the copyright to exist. Instead, once the work is fixed in any tangible medium and can be read, heard, watched or otherwise perceived, the copyright is created.

Copyright Registration Brings Ability To Sue for Infringement

Federal law provides that a copyright holder cannot sue someone for copyright infringement in a U.S. court unless and until the copyright is registered. Thus, even though the work is copyrighted from the moment of creation, the copyright cannot be enforced until the owner of the work obtains registration of the copyright from the U.S. Copyright Office. Registration may be made at any time during the term of any copyright secured on or after January 1, 1978 or during the first term of any copyright secured before that date.

If the registration is sought early, prior to the time the registration is needed to file a lawsuit alleging copyright infringement, the registration procedures are simple and the associated costs are relatively low. If, however, registration is sought after copyright infringement has commenced, expedited registration will have to be sought in order to be able to bring the lawsuit, which means a significantly increased cost to the registrant both in attorney’s fees and registration fees. If expedited registration is not sought, it may be six months to a year before the registration is granted in the ordinary course of processing by the United States Copyright Office, which obviously means a significant delay in being able to file while someone is infringing on your copyrighted work.

Other Benefits of Registration

There are two other significant benefits to registration. First, if registration is made (i.e., the registration application is delivered to the Copyright Office) within three months after first publication of a work or prior to the infringement commencing, then statutory damages may be sought. Statutory damages may provide better redress than seeking actual damages and profits, as often it is difficult to prove actual damages or profits from copyright infringement and no proof of actual damages is required in order to receive statutory damages.

In the case of statutory damages, the copyright owner is entitled to a sum of not less than $750 nor more than $30,000 per infringing copy (e.g., per bootlegged dvd) for all infringements with respect to any one work. If the Court finds the infringement was committed willfully, the Court, in its discretion, may increase the award of statutory damages to a sum of not more than $150,000 per infringing copy.

It is important to appreciate that the statutory damage award applies on a per-infringing copy basis. In the case of UMG Recording v. MP3.com on September 6, 2000, the plaintiffs were awarded $25,000 in statutory damages per CD uploaded on the defendant’s system resulting in a multimillion dollar award.
The second benefit is that registration allows the copyright owner to record the registration with the U.S. Customs Service. This, in turn, allows the Customs Service to seize and destroy, pursuant to specific regulations, infringing works that someone is attempting to import into the United States.
There is No Downside to Copyright Registration

While there are certain advantages to registering early, certain authors of specific types of works, such as software, may not wish to register the claim to copyright for fear of revealing trade secrets. In the case of software, this fear arises because a copy of the computer program’s source code is required to be deposited with the United States Copyright Office as part of the registration process.

Although there is a perceived danger that trade secret protection will be lost because of this deposit requirement, this is not the case. More specifically, while the owner must deposit the source code, he is entitled to strip not more than fifty percent of the source code on the deposit for the Copyright Office.

This has the effect of making the source code useless for copying purposes while providing a recorded copy which can be compared to the original program to verify its authenticity, and which can later be used to compare to an infringing copy. Thus, there is little or no risk of loss of trade secret by virtue of securing an early registration.

In summary, there are advantages to be gained by registering your claim to copyright soon after a work is created, and preferably within three months of publication of the work. Conversely, there are significant potential of losing rights if registration is not sought until after infringement has commenced.

A. José Cortina is a registered patent attorney with the law firm of Daniels, Daniels & Verdonik, P.A. He focuses his practice on the intellectual property needs of small to large technology companies, including providing patent, trademark, copyright, counseling, licensing, conflict resolution and transactional services. He is experienced in a broad range of technologies, including electronics, communications, computer hardware and software, biomedical, materials, and selected chemical and chemical engineering technologies.