Copyright Registration Is Not A Pre-Condition To Protection

© John J. Tormey III, Esq. All Rights Reserved.

This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.

Contrary to the near-indefatigable lay assumption, one is not required to register a copyright in one's work with the U.S. Copyright Office at the Library of Congress in Washington, D.C. (or elsewhere) as a condition precedent for U.S. copyright protection. In other words, one already has copyright protection in one's finished original work, under U.S. federal law. That protection is automatic.

When a writer says "I 'copyrighted' my novel by registering it with the Copyright Office", the writer is usually operating under a mistaken set of assumptions, and it is incumbent upon lawyers to correct those assumptions. "No", the copyright lawyer replies to the writer, "you already had automatic copyright protection in your work as soon as you wrote down the text - as soon as you reduced your vision to a 'tangible medium of expression'". The lawyer then explains that the phrases and verb forms "to copyright" or "I copyrighted" should probably be avoided outright, specifically to prevent that kind of lay confusion.

The process of U.S. copyright registration is just an after-occurring formality. In other words, the work is already copyright-protected prior to one's submission of the work to the Library of Congress in Washington, D.C. Yes, U.S. copyright registration does thereafter provide certain advantages over unregistered works. But registration is not itself a pre-requisite for protection.

Under the U.S. Copyright Act, (which can be found at various locations on the Internet, at 17 United States Code [U.S.C.] Section 101 and following); the author of an original and otherwise-protectible work automatically possesses a copyright in that work as soon as the work is reduced to a "tangible medium of expression". No later.

The choreographer improvises a new dance for her students but owns no copyright in it. However, the moment she writes down the original dance steps, or videotapes herself performing them, she may then have a chance to claim some copyright - protected work. The key is the work's reduction to a fixed medium.

And this makes sense. Look at it from the perspective of enforcement. After all, how difficult would the job be of a federal judge or jury in a U.S. infringement litigation, or that of a U.S. Copyright Office examiner, if the U.S. Congress allowed all of us to claim copyright in the inchoate and evanescent? Therefore, Congress doesn't let us get away with it. Congress requires reduction to a "tangible medium of expression" as a pre-condition for copyright protection. But no, Congress does not require registration - rather, registration is discretionary with the copyright owner.

Yes, after-occurring copyright registration of a work does provide certain strategic advantages, relative to unregistered works. Registration notifies the U.S. and the world, at least constructively, that the claimant thinks he or she owns the copyright in that registered work. Practically speaking, registration creates a likelihood that another company will "pick up" (i.e., see, or notice) the previously-registered work, when that company later conducts a thorough professional (or even a cursory and informal) ocular copyright search of the public records. Most film studios perform thorough copyright searches as a matter of course, for example, before optioning an author's literary work.

Copyright registration is also a necessary precursor to a copyright infringement litigation in a U.S. federal court. For this reason, in practice, individuals and companies have been occasionally known to register their copyrights days - or even hours - before they sue for infringement in federal court. (Of course, it is better to register the work at an earlier stage than that). Filing a copyright infringement litigation in turn allows the recovery of certain types of damages afforded by the Copyright Act (such as "statutory" damages and plaintiffs' attorneys fees), and these types of damages would not be availing to the plaintiff if he or she sued using a different common law theory. A copyright registration may also work advantages in terms of certain international protections.

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My law practice includes the field of entertainment. If you have questions about legal issues which affect your career, and require representation, please contact me:

John J. Tormey III, PLLC
217 East 86th Street, PMB 221
New York, NY 10028
(212) 410-4142 (phone)
(212) 410-2380 (fax)