7/11/2021 Copyright Notice and Registration (BitLaw)

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COPYRIGHT NOTICE AND REGISTRATION

Copyright protection in the United States is automatic upon the fixation of an original work
of authorship (see the BitLaw
discussion on obtaining copyright
protection for more information on this point). However, even though it is not required,
it is
highly advisable that a work protected by copyright contain a copyright notice and be
registered with the U.S. Copyright Office.
The use of the copyright notice and the
registration of a work are referred to as formalities and were
formerly requirements for
copyright protection.

The discussion of the copyright formalities in BitLaw is divided into the following
sections:

importance of the copyright notice

form and placement of copyright notice
importance of registration with the copyright office
procedure for registration with the copyright office
mandatory deposit requirements

Importance of Copyright Notice

Copyright notice is no longer necessary for a work to be protected under copyright law. For
any work published after March 1, 1989, the copyright
notice is strictly optional, though
highly recommended. However, if a work was first published before March 1, 1989, copyright
notice was required for
the work to be protected under copyright. Works that were published
without a copyright notice prior to this date may have lost all right to copyright
protection.

Even though the copyright notice is no longer required, it should still be placed on all
published works. Use of the notice is recommended for the
following reasons:

it informs the public that the work is protected by copyright (and thereby helps to scare aware potential infringers);
it prevents a party from claiming the status of "innocent infringer," which may
allow a party to escape certain damages under the Copyright Act;
and
it identifies the copyright owner and the year of first publication (so that third parties
will know who to contact to request a license to the work).

There is no need to register the work with the Copyright Office or to seek any other kind of permission before using the copyright notice.

Form and Placement of the Copyright Notice:

The copyright notice generally consists of three elements:

1. The symbol © (the letter C in a circle), or the word "Copyright" or the abbreviation "Copr.";
2. The year of first publication of the work; and
3. The name of the owner of copyright in the work.

Example: © 1996 Jane Doe

If the work is unpublished, the appropriate format for the notice includes the phrase
"Unpublished Work" and the year of creation.

Example: Unpublished Work © 1995 John Doe

The "C in a circle" notice is used only on "visually perceptible copies."
Certain kinds of works--for example, musical, dramatic, and literary works--may
be fixed not
in "copies" but by means of sound in an audio recording. Since audio recordings such
as audio tapes and phonograph disks are
"phonorecords" and not "copies,"
under the Copyright Act, the "C in a circle" notice is not used to indicate
protection of the underlying musical,
dramatic, or literary work that is recorded. Instead,
a symbol composed of the letter "P" in a circle is used. Since computer software
and apps for
mobile devices are considered to be visually perceptible (with the aid of a
machine), the copyright notice for software and apps should use the C in a
circle format.

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The notice should be affixed to copies or phonorecords of the work in such a manner and
location as to give reasonable notice of the claim of
copyright. For computer software, the
copyright notice is generally placed on the medium of distribution. If physical media is used
to distribute the
software, the notice should be placed on the disk that contains the
software. If the software is downloaded, such as a mobile device app downloaded
from an app
store, a copyright notice should appear on the page or screen that is displayed when the
product is downloaded. In addition, it is wise to
make the copyright notice visible on the
screen when the program is executed. One way of doing this is to include the notice on a
splash screen that
is temporarily shown when the program is initially executed.

Copyright Registration

Copyright registration is the process by which a formal claim of copyright is filed on a work with
the U.S. Copyright Office. Registration is not a
condition of copyright protection, although it
is a prerequisite for filing a copyright lawsuit on U.S. origin works. However, it is possible to
file a lawsuit
on a previously unregistered work merely by filing an application for registration
immediately prior to initiating the lawsuit.

Even though registration is not a requirement for copyright protection, the Copyright Act does
provides several inducements or advantages to
encourage copyright owners to file for copyright
registration. Among these advantages are the following:

If registration is made within 3 months after publication of the work, it is possible to

collect statutory damages and attorney's fees in infringement
actions (otherwise only
actual damages may be collected);
If made before or within 5 years of publication, registration will establish prima facie
evidence in court of the validity of the copyright and of the
facts stated in the
certificate;
Registration establishes a public record of the copyright claim and allows for the
recordation of transfers of ownership of the copyright; and
Registration allows the copyright to be used to prevent the importation of infringing
copies.

Procedure for Copyright Registration

An application for copyright registration may be made at any time during the life of the
copyright (see the BitLaw discussion on the duration of
copyrights for
more information). An application to register a work is made by submitting the following three items to the U.S. Copyright Office:

1. a properly completed application form;

2. a nonrefundable filing fee (see the Copyright Office website for more details on the fee); and
3. a nonreturnable deposit of the work being registered.

There are a variety of copyright registration forms which can be used; the correct form depends
upon the type of work being registered:

Form TX: for published and unpublished nondramatic literary works;

Form SE: for serials such as periodicals or newspapers;
Form G/DN: for a complete month's issues of a daily newspaper;
Form PA: for the performing arts (musical and dramatic works, motion pictures, and other audiovisual works);
Form VA: for the visual arts (pictorial, graphic, and sculptural works); and
Form SR: for sound recordings.

The deposit is generally one or two copies of the best edition of the work. For computer programs,
the deposit requirement is one source code print
out of the first and last 25 pages of the
program. For a program of fewer than 50 pages, the deposit is a copy of the entire program. In addition,
provisions are included for blocking out important portions of the source code in order
to protect trade secrets.

Mandatory Deposit Requirements

Section 407 of the Copyright Act requires the "owner of copyright or of the exclusive right
of publication" in a work published in the United States to
deposit copies of the work in the
Copyright Office within 3 months of the date of such publication. Publication is defined by the
Act as "the distribution
of copies or phonorecords of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending." The mandatory deposit
provision ensures that the Library of Congress has access to every copyrightable work published in the
United States.

Failure to abide by this mandatory deposit provision has no effect on the copyright protection
available for the work. The only enforcement provision in
the statute applies in cases where the
Register of Copyrights makes a written demand for the required deposit. If the required deposit is
not made

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within 3 months of the demand, the person or organization obligated to make the deposit
is liable for a fine of not more than $250 for each work plus
the retail price of the copies. In
addition, if the refusal to comply is willful or repeated, an added fine of $2,500 may be
incurred.

You have great ideas. When you need to protect them, call us.

James Urzedwoski
     
Daniel A. Tysver

© 1996-2021 Daniel A. Tysver. All Rights Reserved.

Forsgren Fisher McCalmont DeMarea Tysver LLP, Minneapolis, MN612-474-3300

No claim to copyright ownership is made to underlying materials originating with the U.S. Government,
including MPEP and TMEP sections and indexes, statutes, regulations, and court decisions.

IMPORTANT: Please review the legal disclaimer and feedback page

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