Registering Article Copyright

Erik Sherman’s WriterBiz

Registering Article Copyrights

Copyright automatically exists from the instant someone fixes into a permanent form a creation. In other words, when you type the words, you have a copyright in them. However, the existence of copyright alone is not enough to let you choose a courtroom over a more traditional battlefield. Under U.S. law, an author must have registered copyright in a work before taking any sort of court action. Registration is an official record of your ownership.

Although registration will let you protect your copyright interests in court, timing is everything. If you either register within three months of a work’s first publication or before someone has infringed your copyright, then you have a number of big legal sticks you can use to beat offenders, including statutory damages and reimbursement of legal costs. Otherwise, you can only sue for the “actual profit” a company or individual has made off your copyright, and that leaves a lot of room for someone to whittle the number down to virtually nothing. And if you cannot get reimbursed for legal fees, you will probably find it too expensive to take action. The reason there is a three month window is because the U.S. Copyright Office tried to be reasonable, understanding that there could be a case in which an enterprising infringer could make use of published work before the writer could manage to get the copyright registration in. So long as you register within the first three months of the first publication, you’re totally covered, no matter when the infringement happened.

Even if you like to put things off beyond reason, it’s generally important to register your work within five years of the first publication. Why? Because according to copyright law, a certificate of registration made within five years of the first publication of a work “becomes prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.” Prima facie is Latin for “on its face.” If you’ve registered within those five years, the law says that the court must assume that your copyright registration is valid and correct and that you are the owner of the work. If you are suing an infringer, this becomes an area that is exceedingly difficult for the defense lawyer to attack, unless the lawyer has a way of proving. If you register after that five year period, however, the court has leeway for how it treats the registration, which means that the defense counsel might have an easier time attacking your claim.

Here are the basic steps to registering writing (and exactitude is important as I’ve found, as missing information or incorrect format will cause the U.S. Copyright Office to return your packet to you and insist that you get it right):

1. Determine what type of work you have. Most writing falls under the category of literary, which includes non-fiction, poetry, fiction, articles, speeches, reports, articles, books, brochures, and advertising copy (though not plays and screenplays, which are in the performing arts category.) Choose either form TX or Short Form TX (the latter if you are the only author, it isn’t Work Made For Hire – explanation coming shortly – and it is completely new and not containing “a substantial amount of material that has been previously published or registered or in the public domain,” as the Copyright Office puts it). If what you are submitting is a group of articles, look at also using form GR/CP. This lets you register a group of contributions to periodicals so long as the publication dates are all within one single continuous 12-month span. That means you can save money by grouping your submission into three month blocks – so you get the maximum legal protection for any copyright infringement – and paying a single $45 fee. If you are writing anything that is unpublished, you can group it all together as unpublished works under some title – like The Collected Works of A. Writer, 2008, Volume I – and handle them all with a single registration fee.

2. Make copies to deposit with the Copyright Office. If your writing is unpublished, then you only need one copy. If it has been published, you will need two copies of the best edition, which means the best quality copy. (See the end of this lesson for more information on how the Copyright Office determines copy quality.)

3. Fill out the copyright registration form(s). Put the form or forms and the copies of your writing into an envelope with a $45 check or money order made out to “Register of Copyrights”.

Send the package to:

Library of Congress

101 Independence Avenue, S.E.

Washington, D.C. 20559-6000

For permissions or licensing information, please contact:

Erik Sherman, erikbsherman@yahoo.com