The rights of authors are enshrined in the Copyright Clause of the United States Constitution, Article I, Section 8, Clause 8. Federal law governs copyrights in the United States, with the Copyright Act of 1976 (and its amendments) setting forth rights, remedies defenses, and procedures. The Copyright Act affords authors and artists a bundle of exclusive rights, including the right to control copying the of the protected work. However, copyright protects only the author’s expression and not the idea behind it. For example, the story of forbidden love typified by Shakespeare’s Romeo and Juliet has been retold countless times over the ages. Each version contains that author’s expression of the story, with its own characters, settings, and plot details of conflict. An original version crafted today, based only on Shakespeare’s work – now in the public domain – would be eligible for copyright.
An author’s copyright in a work arises automatically when the expression is committed to a tangible form of expression, such as a manuscript, photograph, videotape, or audio recording. Registering the copyright claim in the Copyright Office in the Library of Congress is not required in order for the work to be protected by copyright. However, as a practical matter, registration is required to enforce one’s copyright.
- Copyright registration is a prerequisite to commencing an infringement lawsuit.
- Copyright registration affords the author special remedies provided the registration preceded the infringement. The author may receive an award of attorney’s fees if the suit is successful, a generous provision not usually found in American law. The author may also receive an award of statutory damages of up to $150,000 per work infringed.
Copyright registration is relatively straightforward, although it can become a bit tricky when seeking to register a work that embodies trade secrets, such as a computer program. Given the modest cost of copyright registration, that course is highly recommended if there is any likelihood of copying by a competitor or pirate.
Marc Gorelnik has extensive experience in litigating the rights of authors and artists, whether bringing an action to enforce rights or defending a lawsuit. He has obtained both preliminary and permanent injunctions and money awards. Recently, he obtained a order of permanent injunction and seizure against Chinese counterfeiters. The following year, and with the assistance of law enforcement, he seized infringing materials from the floor of a trade show in Las Vegas. Early in his legal career, Mr. Gorelnik successfully defended a prominent software maker from infringement claims brought by the rock group The Jefferson Airplane.