One of the biggest questions I see from business owners, especially content creators, is “What do I need to do to copyright my work?” This article will teach you what a copyright is, when it’s created, registering your copyright, and what to do if your copyright is infringed upon.
Generally speaking, in the US, your work has an automatic copyright when it’s created. This means, there is nothing affirmative you have to do have a copyright on your work. However, like with most things in the law, that’s just the beginning.
What is copyright?
Copyright is a federal protection offered to creators of almost any type of content. This could be written word, artwork, podcast, music lyrics, a poem, or posts on Facebook. It basically includes anything that can be created. The requirements are that is has to be fixed in a tangible medium (written, posted online) and original with minimal creativity. It does not protect things like ideas, facts, systems, or ways of doing things. Maybe surprisingly, it does not protect recipes or words, taglines, slogans, etc. (though these may be protected by trademark law).
Having a copyright on a work gives you a set of legal rights as it pertains to that work. You can make copies of it, sell it, put it in public, or create derivative works. A copyright is generally valid for the author’s life plus 70 years, subject to some exceptions for work for hire.
The first thing you’ll want to think about when creating anything you consider to be your copyrighted work is including a copyright notice. Some people say it’s not necessary, but you should always include a copyright notice on your work.
A copyright notice has not been required since the late 80s. However, by including this notice on your work, you put others on notice that you are claiming copyright on the work. It also makes it harder for an infringer to claim the innocent infringement defense. A copyright notice should include: Name of creator, date first created, and the (c) symbol. For a blog or other type of ongoing work, you can use a date range like 2012-2018.
Why would you register your copyright?
Since it’s not required to register a copyright, you may be wondering why someone would even bother. It’s not terribly expensive (generally $35-$85) and unlike trademark, it’s something many people can do without an attorney, but if you have something like a blog registering all of your content could become cumbersome—not to mention expensive! However, in some cases, it is a good idea to copyright your work. There are a couple of reasons. You can usually register your copyright on line here.
One, before you can bring a lawsuit against someone for infringing on your copyright, it has to be registered. You can register after you find out someone is infringing, but then you have wait to bring suit until you’ve received notice that your copyright has, in fact, been registered.
Two, registering a copyright before it has been infringed means you’ll be eligible for statutory damages. The basic level of damages is $750-$30,000, but if you can show the infringer did so willfully (meaning they intentionally stole your copyrighted work), you can get up to $150,000. Here’s where the importance of notice comes in—the infringer can argue they didn’t know and didn’t have reason to know the work was copyrighted and get their damages reduced to $200. If your work has a copyright notice on it, this is going to be much harder (if not impossible) to prove.
What if you don’t register your copyright?
If your copyright isn’t registered when the person infringes upon it, then typically the damages you’ll receive are limited to actual damages. So, if A steals your work, sells it to her audience, and makes $10,000, your damages would be limited to $10,000. But, if you’ve already registered, the statutory damages can be in the hundreds of thousands of dollars.
Whether you decide to register a copyright for your work is really up to you. If you’re just starting out and have some content on a blog, it’s probably not necessary. However, if you have built up a business and are coming out with a product, you may want to consider registering a copyright for that product. The further along you are on your business journey, generally the more you have to lose.
**Side note about damages**
In a copyright infringement suit (or almost any other suit), even if you win a judgment against the defendant, there is no guarantee you will actually receive any money. This is something I have to explain to clients all the time, and I hate it, but it’s something they (and you!) need to know.
Someone legally wrongs you and you decide to sue. It’s a cut and dry case and you win. Great! Now, here comes the potentially hard part. Using a copyright example, let’s say you registered a copyright for a course you created. The course sells for $197. Cindy Blogger steals your course, changes the name, and sells it as her own. She has a decent sized list and manages to sell over 100 copies of your course-sold as her own. Someone alerts you to this and you decide to take legal action. You were on top of it and registered your copyright, so you’re eligible for statutory damages. You go to court and win a $150,000 against Cindy Blogger. Awesome!
And it is. But, just because you got an award of $150,000 from the court against Cindy doesn’t mean you’re going to collect that amount. Unfortunately, if Cindy doesn’t have the money, she doesn’t have the money. You can’t just make someone come up with a large sum of money to fulfill a judgment. Now, if Cindy owns property, you may be able to force the sale of the property or get a lien on the things she owns. But, in a lot of states, a person’s house is exempt from forcing the sale (you could maybe get a lien, so that when the house sells you can collect your money). And I don’t know about you, but I don’t think everything I own adds up to $150,000. That being said, you still have a judgment, so if Cindy Blogger goes out and buys a lottery ticket and wins $1 million tomorrow, you’ll be able to collect from her.
Protecting your work, especially online, can be really hard. But, now you know what copyright is and whether or not you have one on your work (hint-you probably do!). You know you need to be including a copyright notice on all of your work. You know what you need to do to register a copyright and when it’s appropriate. If you do find someone has stolen your content and posted it online, you can do a DMCA takedown to have them remove the content.
Disclaimer: This site, and all information contained herein or through communication with me, is intended as legal information only. I am an attorney, but I am not your attorney, so nothing on this site, nor any communication with me, shall create an attorney-client relationship. I am not liable for damages or losses based on any action taken, or inaction, based on the information contained on this site. All areas of the law are fact specific and there is no substitute for legal advice from an attorney licensed in your jurisdiction who is familiar with the specific facts and circumstances of your situation.