Notice

You’ve probably seen the copyright notice symbol, ©, the “c” in a circle many times.  Usually it is followed by the year of publication of the item and the name of the copyright holder.  Recall from week one that, currently, putting copyright notice on a work is not a requirement for copyright to exit.  But it used to be.  Any work published in the United States before 1978 had to have this notice on the work, or copyright didn’t exist in the work.  For example, someone forgot to add a copyright notice to the title screen of the movie Night of the Living Dead, and so it immediately entered into the public domain.

While not necessary for copyright to exist, there are still good reasons to put copyright notice on your work.  First, putting notice on your work signals to the world that you are aware of your rights as a copyright holder, and may discourage people from engaging in certain infringing activities.

Secondly, notice may help you in the instance where you do end up bringing a lawsuit.  Bringing a lawsuit is an expensive proposition, and the likelihood of receiving sufficient damages to cover legal costs increases if it can be proved that the infringement was willful, i.e. that the person knew what they were doing was infringement.  It is harder to argue that you didn’t know you were infringing if there was copyright notice on the work.

Remember that Creative Commons licenses are built on top of existing copyright laws, so that even if you have shared your work under a CC license, you can still put copyright notice on your work and also register it with the Copyright Office.

Registration

Just like copyright notice, registering a work with the Copyright Office used to be a requirement for copyright to exist, but this hasn’t been true since March 1, 1989.  You do not need to register your work with the Copyright Office to be the copyright owner, but again, there are some good reasons for doing so, the most important one being that you must register a work before you can bring a lawsuit against someone for infringement.

Registration requires completion of a copyright registration form, payment of fee, and two copies of the work (if the work is published, only one copy is required for unpublished works.)

There are a variety of different forms used to register different kinds of works: TX for text based works, VA (visual arts) for images, PA (performing arts) for dramatic works and song lyrics, and SR for sound recordings.  It is possible to register a group of photographs together using one registration.  Group registration can save quite a lot of money because you only pay the registration fee once, instead of for each photo separately.  There are also special forms that newspapers and other periodicals can use to register all of the works they publish within a certain time frame.  You can register your copyright in any of these formats online at copyright.gov.  Printable versions of all these forms are also available there.

You have the option to register multimedia works (text with images, for example) together or as separate works.  Registering them together costs less in registration fees, but may also mean you earn less in damages should you ever end up bringing a lawsuit.

Registration fees vary depending on the nature of the work and the method of filing for registration (you’ll pay more if you don’t use the online registration system,) but are between $35 and $85 in most situations.

Anyone who holds any of the exclusive rights to the work is eligible to register the work.  Of course the original creator can register a work (as long as they haven’t assigned the copyright to someone else), but if the original creator has granted an exclusive license to make derivative works to another, that is sufficient for that person to be able to register the work.  (Remember, the copyright in works made in the course of regular employment is held by the employer, in this case the employee is not eligible to register the work.  In the case of joint authorship, any one of the creators can register.)  Only one registration is necessary per work.

A registration is considered to have happened at the time that the Copyright Office receives your application.  After a few months you will receive a certificate of registration in the mail (this is the document that would have to be presented in court in order to file a lawsuit.)

Registration records back to January 1978 are publicly available and searchable on the Library of Congress website.

Discovering Infringement

It is up to every creator or copyright holder to monitor for copyright infringement of their work.  There is no law enforcement office that exists to police this for you.  It would be an enormous, impossible task.  If you publish your work with an established company, it is possible (but by no means guaranteed) that they have both the resources and the motivation to monitor for copyright violations of your work and try to enforce your/their rights.  If this is not the case it is up to you to discover instances of infringement and pursue appropriate remedies.

Google (and frankly any search engine) can be a powerful tool in monitoring for infringement.  Of course Google can be used to search for text based materials.  Advances search techniques are helpful here, for example, using quotation marks around a string of works tells Google that you only want to see results where these exact words appear in this exact order.  It is also relatively easy to use the Google Reverse Image Search to find instances of your images being used across the internet.  Just click the little camera within the search box on the Google Images search page in order to select an image URL or upload an image.

YouTube also makes available to some content creators a set of ContentID tools that can be used to identify instances of a work being used by others on the platform.  YouTube is beta testing the idea of offering these tools to all creators, but these tools have also been widely criticized for resulting in take downs of lawfully created videos (work that would likely qualify as fair use.)  More information on how YouTube handles copyright is available here.

Cease & Desist

Whether or not you have registered your work with the Copyright Office, if you discover someone engaging in activities that you feel infringe your copyrights, your first step is to send a cease and desist letter.  This letter should include:

• your name & contact info
• the work and the date it was published (and registered if applicable)
• what you want them to do (i.e.,stop the activity and/or pay up)
• how long they have to respond

It’s worthwhile to send the letter via certified mail or request a return receipt.  Depending on how you feel about the infringement you may request different corrective actions.  At the mildest end of the spectrum, if the use doesn’t bother you much, but you’d at least like to be credited for your work, you can request that an attribution be added, and let it go.  In the middle of the road, you could request payment in an amount similar to what you would have charged if they had asked for a nonexclusive license before engaging in the activity.  If you are very unhappy with what has happened you could request that all infringing work be taken down and request compensation in an amount higher than what you would have charged if they’d asked first.

For a good example of this, check out Letters to My Copyright Infringers, a blog post written by a photographer where he shares a variety of cease and desist letters he has sent and the actual circumstances around the letters.  If you’d like to see more examples, the Lumen project, run by researchers out of Harvard, has collected information about millions of cease and desist letters relating to online content.

If can’t reach an agreement directly with the infringing party, then you have to weigh whether or not it would be worthwhile to sue.  Also, if you have not yet registered your work, this is the time to do it, although if you wait until an infringement has happened, you are probably not entitled to statutory damages as described below.  Bringing a lawsuit would involve hiring a lawyer knowledgeable in copyright, and they don’t come cheap.

Remedies

In order to prove that your copyright has been infringed you must prove that the individual had access to your original work and that the infringing work is sufficiently similar to your work.  In the case where a judge finds that copyright has been infringed, there are a variety of actions the court can take to correct the problem, these are known as remedies.  The statutes relating to remedies are 17 USC 501, 502, 503, 504, 505 and 506.

• Injunction: the court can order the defendant to cease the infringing activity, either temporarily while the trial is in progress or on a permanent basis.
• Actual Damages: the defendant compensates the copyright holder in such a way that the copyright holder is in the same economic position they would have been if the infringement never happened.  This can include damages related harm done to the copyright holder’s reputation, to lost business opportunities, and any part of the infringer’s profits above these amounts.
• Statutory Damages: up to $150,000
• Attorney fees

Note that you are only entitled to statutory damages if you registered your work within three months of its first publication or before the infringement took place.  Because it can be hard to show what the actual damages are, it very likely wouldn’t be worth your while to sue someone unless you had registered within this timeframe and therefore were entitled to statutory damages.  (If you register your work within five years of its first publication you have the additional benefit that you would not have to prove that your work is original.  Should a lawsuit arise, it would fall to the defendant to prove that it wasn’t your original work.)

Criminal Suits

The penalties described above are the possible results of a civil lawsuit, that is one that is brought by an individual, organization or company.  In relatively rare cases it is possible that the government finds an instance of infringement so egregious that the federal government itself brings a criminal suit.  The penalties for a criminal suit can be much more severe.  For violations involving a retail value between $1,000 and $2,500 the penalty can be up to 1 year in prison and/or $100,000.  For works valued at $2,500 or above the penalty can be 3 years and/or $250,000.