BACK TO BASICS (OF COPYRIGHT)! Part 3

Every work which is eligible for U.S. copyright protection comprises copyright at the moment of its creation. However, a copyright owner cannot enforce rights in the United States except after registration, or after refusal thereof, in the United States copyright office. There are different U.S. registration requirements depending in large part upon whether subject matter is published.[1]

In addition to enforcement, why should content creators invest in U. S. copyright registration? First, registration is necessary to access the administrative procedure to prevent infringing imported products from entering the U. S. Secondly, after a specific time interval registration also provides a rebuttable presumption of the validity of statements in a copyright registration certificate. Thirdly, if registration occurs at the appropriate time, then after copyright infringement litigation a prevailing copyright owner may obtain statutory damages, attorneys fees and costs. [2]

A common misapprehension is that a copy of a work transfers copyright ownership of a work; this misapprehension includes works which are registered or unregistered, published or unpublished. As an example, suppose a customer pays a photographer to take her photograph. She also pays for ten copies of the photograph. The customer subsequently places the photograph on her commercially distributed book jacket without the photographer’s permission. Unfortunately, this activity comprises copyright infringement, because the customer did not pay for the right to display or distribute the photograph. This is the outcome even though the photograph comprises her own likeness, because public display and/or distribution are exclusive rights from the U.S. copyright ‘bundle.’

The good news is that a person may own copyright to a work which appears identical to a second work if both works were created independently. This means that unlike trademark or patent submission, there is no need to file ahead of third persons. However, under U. S. law more than one person may register the identical work as another person if the works were each independently created.

A formidable defense to copyright infringement is the legal concept of fair use. Fair use comprises  factors to determine whether a third person (i) has properly incorporated a portion of another’s work into his or her own subject matter, and (ii) therefore does not infringe.[3]  Currently the most prominent factors are (i) a commercial purpose for the third person’s work, and (ii) whether there is sufficient transformation of the original work by the third person.[4]

© 2022 Adrienne B. Naumann, Esq., all rights reserved. Ms. Naumann does not sponsor or endorse the advertisements at adriennebnaumann.wordpress.com


[1] Publication comprises the distribution of copies to the public by sale or other transfer of ownership, or by rental, lease or lending. Offering to distribute copies to a group for further distribution, public performance or public display also comprises publication.  17 U.S.C. 101.

[2] 17 U.S.C section 504; 17 U.S.C. section 412. Publication of a registered work is a factor when assessing availability  of statutory damage, costs and attorney fees under section 412. The best practice for clients with subject matter to protect will always be submission of a registration application as soon as possible.

[3] 17 U.S.C. section 107.

[4] The transformative use prong of the fair use defense is before the U.S. Supreme Court this term in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, 11 F4th 26 (2d Cir. 2021).

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