They say that imitation is the sincerest form of flattery, and its not uncommon for successful sites and designers to find their work being appropriated by others, but when the hard work youve put into a project is blatantly ripped-off elsewhere it can really hurt, not to mention potentially cause damage your business.
Unfortunately the (US) Copyright Act of 1976 created a common misconception about copyright law that still exists today, some thirty years later. This misconception often serves as a trap that many a copyright owner, including web developers and designers, unknowingly falls for. What is it? Its the belief that “a copyright owner does not have to file a copyright application to protect its works…rather, copyright protection forms when the works are created.”
While technically true (copyright protection begins at the ‘publication’ of the work), taking a “I don’t need to file copyright applications” attitude can often come back to haunt you. The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.”
Here is where the “I don’t need to file copyright applications” strategy bites you…if registration is not made within that time limit, the only action you as a copyright owner can take against an infringer is essentially limited to:
- the Court ordering the infringer to stop infringing and
- damages in the amount of the infringer’s profits or the copyright owner’s loss (which are often the same thing).
As you can imagine, proving what your loss actually is or what monetary amount the infringer profited can be difficult, if not impossible. Further, the recovery of attorney’s fees and costs is not possible either, meaning that your actual recovery would be (profit or loss) minus attorney fees!
The result is that many copyright owners, when faced with infringement of a copyright they failed to register, are left in a position where tolerating the infringement is better than paying an attorney’s bill with no hope of recouping that expense in order to get the infringer to stop.
Know Your Statutory Rights
However, if you have complied with the requirements of the Copyright Act and actually filed a copyright application at the appropriate time, then the aforementioned “statutory damages” come into play.
What are these statutory damages? In the US they include: a sum of not less than $750 or more than $30,000 per work infringed; attorneys fees; costs; and, where the copyright owner can show that the infringement was willful, an award of up to $150,000 per work. As you can imagine, the threat of statutory damages (including attorneys fees) alone are often enough to force the alleged infringer to the bargaining table (a tactic that individuals sued by the RIAA are well aware of). As you can see, the availability of statutory damages often makes or breaks the decision of whether or not legal action is even a viable option.
Note: for those of you reading this outside the United States, if your country has entered into the appropriate copyright treaty with the United States (most have), then statutory damages for infringements in the United States are likely available to you as well (presuming you comply with your country’s registration requirements (consult with a local attorney for more information.
Are you convinced yet?
Did I mention that the fee for filing a copyright application is only $45? Of course, having a copyright attorney prepare the application for you (should you choose to have that done) will cost you more than that, but it isn’t uncommon for startups to assume the risk, read up on the topic and file their own copyright applications. More information about the U.S. registration process can be found on the U.S. Copyright Office’s Registration website
Another, related, registration question that you may have is “if I can’t file the application until the work is complete and ‘published,’ how can I protect my work?” This is a question that oftentimes applies to alpha and beta software testing. Luckily, the U.S. Copyright Office recently started a “preregistration” system that allows copyright owners to file what essentially is a temporary application with the Copyright Office. This “preregistration” allows the copyright holder to file a copyright infringement action even before the work is commercially distributed (and traditional registration is possible) should the work be infringed. http://www.copyright.gov/prereg/help.html
Whose right is it anyway?
Finally, web developers should remember that in the US the author of the work is the owner of the work unless the author has assigned his/her rights in writing, has a duty to do so based upon an employment agreement, or the work is one of the few other “works for hire” exceptions (”a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas”). So, when you are working with an independent contractor on your projects, it is essential that the written agreement you have with the independent contractor includes and assignment of his/her copyright interests to you. Of course, your intellectual property attorney could assist you in preparing the appropriate agreements for signature.
A few ounces of preventative medicine today may save you tons of copyright issues down the road.
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