Copyright Registrations and Terminations

Copyright refers to the legal protection that applies to original works of authorship that are fixed in a tangible medium, like those written down or recorded in some way.  An original work is one that is independently created by an individual and involves at least some degree of originality.  However, the work does not have to be published.  Copyright law does not protect ideas, but it does protect the expression of those ideas.

Scope of Rights

Copyright grants the creator an exclusive legal right to determine when and under what conditions an original work can be used by others. Specifically, the copyright owner has the exclusive right to:

• reproduce the work;
• prepare derivative works;
• distribute copies of the work to the public;
• perform the copyrighted work publicly; and
• display the copyrighted work publicly

In addition, the copyright owner has the right to transfer or give permission to others, any of these rights.

U.S. copyright law allows virtually all types of work to be copyrighted, including:

• literary works;
• musical works, including any accompanying words;
• dramatic works, including any accompanying music;
• pantomimes and choreographic works;
• pictorial, graphic, and sculptural works;
• motion pictures and other audiovisual works;
• sound recordings; and
• architectural works.

As noted above, if the work is not original or fixed in a tangible medium, it is not copyrightable. As a result, techniques, facts, concepts, or ideas alone cannot be copyrighted. Also works that generically compile uncopyrightable information commonly available or contain no original authorship are not copyrightable.

In addition, the following types of works are not protected under copyright law, but may be protected under other laws, such as trademark or contract law:

• Titles, names, short phrases, and slogans
• Familiar symbols or designs
• Typefaces, page designs, and layouts
• Works created by the U.S. Government
• Works in the public domain

While owners are not required to register their copyright to get some baseline protections, there are a variety of benefits to registering a copyright with the U.S. Copyright Office. Importantly, registering your work with an association (like the WGA) does NOT qualify the work for the additional protections. Among the most important of these is that it allows the copyright owner to sue for infringement of the work in federal court. Registration is a prerequisite before you can sue against an infringer. A recent Supreme Court decision determined that the application needs to have been processed, not just applied for, before you can file a lawsuit. Not having a work registered could significantly delay your ability to enforce your rights.

Furthermore, registration provides both a public record of copyright ownership and evidence of ownership in an infringement action. This is crucial as the copyright owner has the burden of proof to show ownership. Courts have held that registration before, or within five years of publication of a work, establishes a presumption of ownership, which then shifts the burden of proof to the party contesting the copyright ownership.

Copyright registration also enables the owner access to statutory damages of up to $150,000 as well as attorneys’ fees, and court costs if the registration is completed within three months of publication of the work. This ensures the owner receives some compensation for the infringement, since it may be difficult to prove actual damages.

Owners can also receive protection from the U.S. Customs and Border Protection program, which will seize and detain imported goods that violate registered copyrights in the U.S.

In order to register a copyright, an application must be filed with the U.S. Copyright Office, which accepts applications both online and by mail.  Along with a completed application, an applicant must also provide a nonreturnable copy of the work to be registered, and a nonrefundable registration fee (for standard processing: $45 – $65 online; $125 by mail).  The author of the work may either register the work under his or her name or use a pseudonym.  The length of time to process an application and receive a certificate once approved varies, and timelines can be checked on the U.S. Copyright Office website.

Effective August 17, 2020, the U.S. Copyright Office has added an option for registration of short, online literary works (ex. blog posts, social media posts, short articles, etc.) known as Group Registration for Short Online Literary Works (GRTX).  Owners will no longer have to register each post separately.  Instead, they can include up to 50 such works in one application for a single filing fee.  Works under this category must be between 50 and 17,500 words, by the same author(s) and filed under their names, published online within a three-month period, and cannot have been published in print before having been published online.  Applicants must submit the online application (Form GRTX) via the electronic registration system and upload a ZIP file containing a separate digital copy of each work.

The Copyright Act grants creators of copyrighted material an opportunity to recapture any copyrights the creators may have assigned under certain circumstances. This is called the right of termination. The reason for the right of termination is because creators, such as authors, songwriters and visual artists, may not have either understood the true value of their works early in their careers or didn’t have sufficient bargaining power to strike a fair deal. Another reason for the termination right is because certain works will increase significantly in value over time in a way that neither party to the assignment of copyright rights could have foreseen, especially the creators of the work.

There are two sections of the Copyright Act that deal with terminations. The first deals with copyrights that were assigned or published after January 1, 1978, the effective date of the current Copyright Act. Under Copyright Act Section 203, the creators of a work (or their heirs) may terminate an assignment or “grant” of any of the copyright or any of the exclusive rights in the copyright to that work during a five-year window that is determined by whether or not the “grant” included publication rights. For assignments or grants that didn’t include publication rights, the creators of the work can terminate, effective as of any time starting at the end of 35 years from the date of the grant to be terminated. If the grant included publication rights, the five-year window starts at the earlier of 35 years from publication of the work or 40 years from the date of the assignment or grant of rights.

The Second section dealing with termination rights is Section 304(c). This is similar, but not identical to Section 203 and deals with works that were created prior to the January 1, 1978 effective date of the current Copyright Act. Here, the five-year termination window starts at the end of 56 years from the date copyright was originally secured, usually by registration. In the event that the Section 304(c) termination rights weren’t exercised within the five-year window, Section 304(d) provides yet another bite at the termination apple. Because pre-1978 copyrights were most recently extended from 75 years to 95 years in duration, Section 304(d) provides a termination right for creators (or their heirs) to recapture the US copyright for the last 20 years of copyright protection for that work.

Under either Section 203 or 304, a notice of termination must be served no earlier than 10 years and no later than two years prior to the effective date of the termination. Where there is more than one creator of a work (two or more songwriters on a song, for example) there are specific rules as to the number of individuals with termination rights required to serve an effective termination notice. Moreover, the statute and regulations require very specific information to be included in the notice and there are provisions about when and with whom terminating parties may negotiate for the post-termination assignment of the terminated rights (usually by sale) and what rights the terminated parties still have with respect to works subject to termination notices. For example, terminating parties only regain U.S. rights and the terminated may still be permitted to use “derivative” works based upon the work that is subject to termination.

Because terminations are so complicated one should consult with qualified copyright attorneys, whether you wish to send a termination notice or if you have received one. Either way, one will want to ensure that the termination notice has been timely filed and all formalities regarding termination notices under either provision of the Copyright Act have been followed.