Coolidge & Graves

    Business and Intellectual Property Law

Should I Register my Copyright?

          You’ve finished your creation. You even have an interested buyer. Then you think (having read these legal columns before) maybe you should do something to protect your rights in your work. You recall something about “registering your copyright” but have no idea how, where or why. I’m glad you asked that question…

            The copyright process has gotten a lot easier in the last few years. It used to be that you had to include special notices in published versions of your work, and had to register your copyright with the Copyright Office before you could sue someone who had infringed your rights. Now, the process is much easier, but, oddly enough, the advice you’ll get from a lawyer hasn’t changed a great deal: yes, include a copyright notice (even though it’s no longer required) and (as is so frequent with us lawyers, a qualified “maybe”  register your copyright. Why?

            First, including a copyright notice in published versions of your work (such as a printed copy of an original visual work) has the effect of telling all and sundry “Hey! This is mine!” Even if the notice is not required, it tells a potential infringer that you mean business, and eliminates the likelihood of the infringer claiming innocent infringement. Second, not all jurisdictions in the world are as generous to artists’ rights as we are here. Some still require the notice, and in some jurisdictions the incantation “All rights reserved.” My advice: include the copyright notice and the incantation.

            What about registration? It’s a simple process. There are different forms for different types of works, depending on whether they are literary, visual or in some other category. A quick call to the Copyright Office in Washington DC will get someone who can get you the right form. They are not difficult to complete. Some registrations require a copy of the best edition of the work to accompany the registration (such as a book) or, in the case of visual art, identifying material such as a photograph or print of the work. Having registered establishes a presumption of notice to the world at large of your claim of ownership, and also allows you to claim for costs and attorney’s fees if you go after an infringer, which you would not get if you had failed to register.

            So, why wouldn’t you register? If you’re going to have a short run of an expensive print of your work, it might be too costly for you to send one of the prints. If you work with a publisher, you may want to check with it to see how they feel about having your works copyright registered: some are reluctant.

            One issue you should discuss with your lawyer: if you sell an original work of art, what about the rights to reproduce the work? They don’t necessarily go with the original work. You may wish to reserve the right to publish copies of the work or include a photograph in a compilation. In that case, having a registered copyright and a well drafted bill of sale can save lots of arguments later!

            Another infrequently considered benefit of registration is estate planning and record keeping. Without going into the details, there may be an ability to recover even transferred copyrights in the future. How would your executor know what to look for? If your recordkeeping is typical, he or she would be unlikely to be able to tell from looking in your files. However, a review of the Copyright Office records would give a pretty good trail, if you had registered your copyrights along the way. Your original copyright and subsequent transfers should all be on record.

            So: should you register? If you’re not publishing, or publishing only in short expensive runs to be sold such that the expense of deposit with the Copyright office is significant, don't care about possible reversionary rights and are not concerned about the right to publish copies of your original work, probably not. If any of these issues is (or is potentially) of concern, registration is worth considering.

 Daniel S. Coolidge is a Senior Counsel to Coolidge & Graves, where his practice includes patents, intellectual property and licensing.