Copyright Registration Facts, Myths and Strategies

The benefits and basics of how, when and why to register your songs with the Library of Congress through the U.S. Copyright Office should be part of your overall business plan for promoting your creative work. Devising a strategy can enhance your protection and save you money over time.

A growing backlog of registration applications at the U.S. Copyright Office and the cost of registering a work have many people asking, “Should I even register?” The question for most shouldn’t be whether to register or not, but rather, “When should I register?” A description of a typical approach to registration that many creators use can help explain why. If you are a songwriter or someone who creates other copyrightable works, this excerpt of a conversation may sound familiar to you:

I just wrote a song and want to get a copyright and protect my creative idea, but I am on a budget and it costs approximately $40 to register a work with the Library of Congress if I do it on my own and as much as $150 if I use the services of a professional. Because I am writing all the time, I’d go broke registering every work as I create them. I’d rather wait until I have 10 or 15 works and register them as a collective work. It seems smart to register and I can save money registering several songs as a collective work. Is this the best way to balance my desire for getting my copyright and protecting myself from infringers with the constraints of my limited budget?

Simply put, the answer is no. Here are a few reasons why:

This creator’s motivation to register is based on both fact and myth. Most creators are familiar with the following three primary and unique benefits of registering a work with the U.S. Copyright Office:

·      Registration is required before a court will allow you to file a suit.

·      If you win in court, early registration helps determine damage awards. The damages awarded are potentially higher if the registration occurs before an infringement occurs.

·      The physical copy of your work (the deposit copy) that accompanies the registration of your work serves as proof that the work existed at the time of registration.

Understanding exclusive rights

Some people still believe the act of registration gives them “their copyright” as they perceive it, but it doesn’t. At a recent networking event, one participant said, “I want to register to get my copyright.” They said they thought it was, “… the rights that require others to get my permission to use my work give me the opportunity to make money from my work.” These rights are the exclusive rights. A creator is entitled to these exclusive rights with or without the registration a work with the U.S. Copyright Office. The benefits of the exclusive rights that the law provides are available even if a song is not registered. The exclusive rights are vested at the moment of creation. The U.S. Copyright Law specifies those rights as:

• The right to make copies
• The right to distribute copies
• The right to make derivative works
• The right to publicly perform or display works
• The right to perform works through digital audio transmission (sound recordings only)

One of the immediate benefits of registration is establishing evidence that a work exists. The other benefits of registration (getting into court and damage awards) do not apply until someone has infringed your work or someone claims you infringed their work and you must go to court to protect rights. Most who register will only benefit from the evidence portion of their work.

The vast majority of creators never use those benefits of registration because their works will never be infringed. And of the few works truly infringed, only a small fraction of those actually justify the cost of going to court. Spending $35-150 per registration is hardly practical for the benefit of proving the date of creation. Historically, the answer has been that it’s still the best possible proof, and if you do go to court, you’re ready. If lower-cost and superior alternatives exist that provide the benefit of proof, it makes sense to consider a different rationale for the expense and timing of copyright registration.

The downside of the current registration process

The downside to the approach used by the songwriter who asked the initial question, “Should I wait and register collective works?” is failing to have proof of creation when a work is created. Many songwriters are proud of the10 to 20 songs a year that they write even though they may write more. They typically wait 12 to 18 months to accumulate a collection of works valuable enough to spend $35 per registration for benefits, two-thirds of which are rarely accessed. In between writing songs, creators play writer’s nights, collaborate with co-writers and share the works they are most excited about with their friends and fans. This exposure or when a work begins to make money is when the risks of not having proof matters. And there have been many examples of co-writers inadvertently using ideas from an earlier work for other projects. The infraction may not be intentional, but the result is the same. The burden falls to the creator of the original work to prove the idea was first created at an earlier date than the later infringement.

In the rare event a creator actually needs all the benefits of registration (proof, court access and determination of damages), having proof is the most important benefit. Proof of creation can create a strong enough case to avoid expensive court costs and attorney’s fees. In a perfect world, creators would start establishing proof at the moment they start the creative process and they would register copies of their work numerous times as it develops. Few can afford to register multiple copies of works or are likely to invest so much time doing non-creative tasks. These problems are what sparked the ideas that inspired the company MyWerx to design a solution.

New forms of evidence

Understanding some of the types of proof that are now available can also help you decide when it’s best to register a work with the Copyright Office. The Internet, cloud computing, fingerprinting, and GPS location have created a completely new paradigm for proving date of creation that is far superior to a Copyright Office registration in both the quantity and quality of the evidence and it is available at a fraction of the cost.

Escrow. One of the best forms of evidence is a physical copy escrowed with a neutral third party. The earliest possible escrow date is important. I recommend escrowing a work the day it is created. The cost of hard disk space in today’s cloud-computing realm is remarkably inexpensive. It can cost less than a stamp you would use to put on an envelope and mail copies of a work to yourself (a poor man’s copyright).

Collaboration. Another form of evidence available today is proof of collaboration. MyWerx.com uses Facebook-like interactions between collaborators of a work to confirm they know one another and even validate the types of contributions made to a work. Like Facebook, this form of social networking is free and it results in a new form of evidence in the development of a work as well as improved levels of creative collaboration.

Geo location. Smart phones have made GPS location tracking ubiquitous. You can even identify the location of where you are when you take a picture or write a song. The MyWerx iPhone application adds a geo tag to the creator’s work at their discretion. Now you not only have an escrow date, but you also have evidence of the place and time on the day it was created.

File fingerprints. Each digital file turns a photo, text or music into a bunch of 1’s and 0’s. Those 1’s and 0’s, in combination with information embedded in a file, create individual identities or fingerprints for each file. This stored and dated unique identifier (a long string of characters consisting of numbers and letters, also called a hash) is associated with the title of the work, the authors and their contributions. Each time that a work’s file is accessed by the software the same unique ID is created. When two unique ID’s match, the software can identify that the file is the same file previously escrowed. A computer couldn’t have created the fingerprint without the file and therefore the day the fingerprint is created is essentially the escrow date of a work. In order for the fingerprint to serve as proof, the file must also exist. The two in combination provide the proof.

Version history. Another compelling form of evidence is a third party authenticated log of multiple versions of a work as it develops. Having a log of each version or iteration of a work serves as undeniable evidence that those who are storing the versions created it.

Evidence will transform marketing

New advancements in technology have enabled proof of creation of intellectual property at a price everyone can afford. It is simple to use and it’s truly revolutionary.  It is important to note this evidence does more than protect.  It will be the new norm in market preparation and will aid your customers in finding, buying and experiencing your products at a whole new level.  I will save the details of that for another article.

More Protection / Less Investment

Here are five steps to improved copyright protection and reduced expense:

1. Post a work with a third party to automate the confirmation that collaborator’s worked together and validate their contributions to the work.
2. Use WerxProof to document the earliest possible version of a work.
3. Use WerxProof for all iterations of a work as it develops over time (if applicable).
4. Add the geo location to a work during the WerxProof process (iPhone app only).
5. When the work is published (made available to the public) and has the potential to provide you with a return on your $35 investment, register it with the Copyright Office.

Tim Smith, MBA, is the founder and CEO of MyWerx. He has over 25 years of experience in information technology and international copyright licensing, and valuation. MyWerx won Smith the honor of Innovator of the Year by the Nashville Technology Council in October 2010. Billboard Magazine also recognized MyWerx as one of the Top Ten Best New Digital Music Companies in August 2010.

[Did you know?....that Congress established the Library of Congress and the registration process not only to benefit individuals registering works, but also to benefit society as a whole by creating a library of the works our society has created? The works that were the initial mandate for registration with the library were “Published” works.]