By Susan Spann
Today, we’ll continue the #PubLaw guest series on Copyright in the Contract with a look at copyright registration.
As I mentioned in last month’s post (you can read it HERE), copyright protection is automatic and attaches to qualifying works (like novels) at the time of creation. Formal registration is not required to create a copyright in an author’s work.
However, copyright registration does have several important benefits and should be addressed, specifically, in every publishing contract.
BENEFITS OF COPYRIGHT REGISTRATION
Authors should ensure that novels and other published works are promptly—and properly—registered with the copyright office on, or within three months after, the date of initial publication. Publishing an excerpt on your blog does not constitute “publication” for registration purposes – the term refers to the date the entire work is officially published – though if you publish your entire novel online, serially or otherwise, it is “published” for copyright purposes.
For electronic works, the publication date is the date the work becomes available for download (or available to read online in its entirety) – for a fee or for free – on the first authorized sale or download site.
For printed works, the publication date is the date the book releases in printed format.
You do not need to register twice, if a book is available in print and ebook format – but remember: the operative date of “publication” is the date the first format becomes available for sale (or download).
Benefits of registration include:
1. Placing the world on notice of your ownership. Registration puts everyone on notice that you own the work and claim the rights associated with ownership. Although intent is not an element of copyright infringement, registration makes it much harder for infringers to claim innocence. Registration may also help transfer or license ownership rights, because film studios and others who want to license rights know they’re dealing with the actual owner of the work.
2. Statutory damages and attorney fees. If a work is registered within three months after its initial publication date, the author is eligible to claim special monetary damages, and recover attorney fees, in a successful lawsuit against infringers. If the work isn’t registered, the infringer can be forced to stop, but the special monetary damages and attorney fees are not available.
3. The ability to sue for infringement. Copyright law states that authors and publishers can only file lawsuits over infringement after the work is registered with the copyright office.
4. An easier test for infringement. If copyright is registered within five years after the work’s initial publication date, the registration is “prima facie” evidence that the copyright is valid. This means that the author can prove ownership in court by producing evidence of registration, and the defendant has a much harder time defending against a claim of infringement. This is a powerful legal benefit for an author.
COPYRIGHT REGISTRATION IN THE PUBLISHING CONTRACT
If you elect to self-publish your work, you will need to register copyright yourself.
If you publish through a publisher, with a contract, you must be sure the contract states who will register the copyright and when registration will take place.
Many small publishers require the author to register his or her own copyright. Many publishers (including all “Big 5” houses) register copyright on the author’s behalf. Regardless of how registration occurs, your contract must contain specific language addressing copyright registration.
Appropriate copyright registration language includes at least 3 elements:
1. Who will register the copyright with the U.S. Copyright office (the author or the publisher.)
2. When the copyright will be registered. This needs to be “within 90 days of the date of initial publication of the first edition of the Work in any form or format” in order to preserve your legal rights.
3. Who pays the registration fee and provides the copies to the Copyright Office. Normally, the one who files the registration pays the $35 fee, which is due at the time of registration.
Printed works must be sent to the copyright office in physical form, while ebook-only publications can be submitted electronically. However, someone has to submit the work to the copyright office at the time of registration—and the contract must be clear about who has that responsibility. If the contract states that the publisher will register the copyright, then the publisher will also provide the copies. Normally, if the author handles registration, the author must provide the copies—but ask the publisher to provide you with extra copies of the novel for this purpose.
Make sure your work is promptly, and properly, registered within 90 days after initial publication. If your work is already published, and not yet registered, register now to preserve as many rights as possible.
Registrations can be filed online at copyright.gov.
Have questions about this or other copyright topics? I’d love to hear from you in the comments!
Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Minotaur Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. The sequel, BLADE OF THE SAMURAI, will release in July 2014.
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