When and How Should Your Business Register a Copyright?

Almost every business these days produces information that may be a copyrightable work of authorship.  The question is: when and how should the business register a copyright?  This becomes a question of the value of information product the business has produced and how copyright registration supports that value.

This Lawgorithm looks at the question from a business-oriented perspective, asking:

• • is copyright protection available for the work?
  • what role does the work perform in the business?
  • what kind of protection might be most appropriate to its role?
  • what benefits does copyright registration offer?
  • how do I register?

This Lawgorithm is designed to help businesses decide whether to register a copyrighted work with the US Copyright Office.

Registering a copyright is a relatively simple and inexpensive process that creates a record of copyright ownership with the Copyright Office, a part of the federal Library of Congress.

You do not need to register a copyright in order to own it.  You own a copyright in a work of authorship[1] the moment you create it and record it in “a tangible medium of expression” – i.e., write it on paper or on a computer, photograph it, audio or video record it, etcetera.  And, because of this claim to ownership, you can bring a lawsuit in federal court to enforce your copyright, even if you had never previously registered the work (you will ultimately have to register to bring suit).

However, there are some very compelling benefits to registration.  Whether registration is right for you will depend on a number of factors: a) whether the item is copyrightable in the first place, b) what role it plays and what value it has in the business and c) on whether the benefits are worth it to you.

1.     What is Copyrightable?

If an item is not copyrightable, you cannot register it.  Most original expression is copyrightable, but there are certain types that are not:

1. 1. Ideas are abstract concepts that have not been reduced to particular, concrete expression.  A general ‘rags to riches’ storyline is not protectable; a biography of Andrew Carnegie is.
   2. Methods, algorithms, processes, procedures and systems.  Of particular note for software authors: copyright does not protect the algorithm (patent might, if the algorithm enacts a patentable process) any more than it does a recipe.
   3. Unoriginal works.  Customer lists, white pages telephone listings, log files and other works lacking a “modicum of creativity” are not copyrightable.  Compilations of facts may be copyrightable if they introduce original sequence, structure or organization, but the underlying facts are not.
   4. Personal and business names, titles (including book and song titles), fonts (except as part of a logo, design, etc.), fashion design, blank forms, short phrases or slogans.  In some cases, the item does not rise to the level of ‘de minimus’ originality; in other cases, trademark or patent law is the appropriate form of protection.

If the work is not copyrightable, consider whether it is nevertheless valuable and protectable by trade secrets law or patent law.  ä

2.     How to Evaluate Business Value?

The value and importance of a work is a function of its role in the business.  In general, an information product can perform 4 different kinds of roles in business.

1. 1. Secret.  The information derives its principal value from its being secret.  If this is the case, and the business has been and will be diligent in keeping the information secret, copyright registration should not be pursued.  Instead, a separate inquiry into the creation and maintenance of trade secret rights should be explored, and we exit the analysis. ä
   2. Product.  The work is the item for sale.  It alone or in combination with other resources (like labor) is what the business has to sell.  The business is typically an author or publisher of a Work.  It is selling a book, a movie, a computer program, a newspaper, a game, a song, etc.   These businesses comprise the “intellectual property industry,” generate over $6 trillion in gross sales, and make up over 38% of the US Gross Domestic Product.[2]
   3. Asset.  The work provides the business with a competitive advantage of some sort.  It may even be counted ‘on the books’ as an intangible asset of the business.  Advertising is perhaps the preeminent example, but other copyright assets might include studies, reports, surveys, software tools and infrastructure, and knowledge in the form of employee presentations and publications.
   4. Ancillary.  The work plays a ‘supporting’ role internal to the operation of the business.  Employee manuals, procedures manuals, memoranda, company signage and internal publications are examples of these kinds of works.

The business importance of a work, and the benefit of registering a copyright, is in general greatest with Products, followed by Assets and then Ancillary works.

There are some works that of relatively little business value of any kind – ephemeral meeting minutes, emails, voicemails, etc.  In this case, there is little need to consider copyright registration, and you can exit the analysis.

3.     What are the Business Benefits of Copyright Registration?

Copyright registration offers key advantages to the copyright owner, which are of greatest importance when the business value of the Work is the greatest.

1. 1. Statutory Damages.  If your Work is infringed, you’ll have to prove actual damages, which is most often measured in terms of lost profits.  These can be very speculative and difficult to prove.  Registering your copyright, on the other hand, may entitle you to instead seek statutory damages.  These damages are fixed by statue and range from $750 to $30,000 for all infringements of a single work.  In the case of willful infringement, statutory damages may be as much as $150,000.  Statutory damages require registration within 3 months of publication, or before infringement occurs.
   2. Presumption of Valid Ownership.  Registration also serves as prima facie evidence of the validity and date of the copyright, meaning that the burden is on the defendant to prove the works do not belong to you.  Ordinarily, this burden would be on the copyright owner.  You may not have time for these legal measures if you are seeking an injunction to stop harm that is occurring now or imminently. If the work registered within five years of publication, the copyright ownership is also presumed valid.
   3. Import Protection.  The copyright registration can be recorded with U.S. Customs and Border Protection, which will seize and detain infringing copies of a work being imported into the US.  The copyright owner can also petition the International Trade Commission to exclude infringing goods from import in the first place.
   4. Record and Notice.  Registration creates a searchable public record.  Not only are potential infringers on notice (and therefore potentially liable for willful infringement), but parties seeking to contact the copyright owner (for licensing) are able to contact them.
   5. Pre-Requisite to Suit.  As previously mentioned, the work must be registered with the Copyright Office before suit can be brought in federal court.  Because registration may take 3 to 12 months, this delay could be decisive if you are seeking to address imminent harm to your business.

4.     What if a Copyrighted Work also has Utility Value?

In addition to their value as products, assets or ancillary material, certain works may have utilitarian value.  They perform a useful function.  This is particularly true of computer software, where the written code is not only an original “literary work” (as described by the Copyright Office), but embodies a new “process, machine, manufacture, or composition of matter.”  The software may solve problems in the field of computer and data science that are independently worthy of protection by US Patent Law.  In this case, you should consider filing a patent on the software in addition to registering it with the Copyright Office.  Bear in mind that an inventor has one year from the date that an invention is publicly used, sold or described, and that registering a Work with the Copyright office will set this clock ticking.

5.     How to Register a Copyright?

Registering the copyright is not difficult and can be done online or through the mail.  Registration requires that complete an application, pay a fee and deposit two copies of the “best edition” of the work with the Copyright Office.  If a work is digital-only, the two-copy rule obviously does not apply.  “Best edition” refers to criteria that the Library of Congress determines for the deposit to be suitable for its purposes. Generally, if a work exists in digital and also in physical form, the best edition is the physical version.

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[1] “Work of Authorship” or just “work” is the term of art that copyright law uses for a particular original, creative or communicative expression.  It can be a literary, artistic, educational, musical, software, etc.

[2] US Department of Commerce, Intellectual Property and the US Economy, 2016.  https://www.uspto.gov/sites/default/files/documents/IPandtheUSEconomySept2016.pdf