Law Office of Diane Leigh Davison

Facts and Myths

COPYRIGHT: a bundle of rights in works of artistic expression.
U.S. COPYRIGHT LAW: Copyright Act of 1976, as amended; together with the Berne Convention treaty.
AUTOMATIC PROTECTION: Under the Act, copyright automatically attaches upon creation of an original work and fixation of that work in a tangible form.
FEDERAL REGISTRATION: Registration of your copyright with the Copyright Office in the Library of Congress grants you certain added benefits and means of enforcement of your rights against infringers. For example, you acquire the <>presumption of ownership, and shift the burden of proof to the infringer; you can avail yourself of statutory damages in case there were no actual monetary damages by the infringement or they are hard to prove; and most importantly (not just because I am a lawyer) you get to recover your attorney fees and costs if successful thus making it more likely for you to afford a lawyer since they will then take the case on a contingency basis.

REGISTER AT: $35 per application

Mailing yourself a copy.
Huh?! I am amazed that people still follow this myth and now waste 46 plus a perfectly good envelope. Mailing it only confirms the date you mailed it to yourself. Nothing more. 'nuff said.
Sampling or unlicenced use.
"I only used a little bit."
"I used less than X number of words/lines/bars/notes."
"If I give it away for free then there's no copyright infringement because it wasn't for money."
"If I use it for nonprofit use it's ok."
"I just used it for personal use."
"If I don't charge for showing the movie then it's not an infringement."
"This is fair use."
Do any of these sound like your explanations or excuses? Then you are likely infringing upon someone else's copyright! When someone owns a copyright they own it to the exclusion of everyone else, period. They are the only ones who can decide IF and HOW someone else can or can't use even a teensy-tiny bit of the work.

FAIR USE is a special set of exceptions limited to mostly educational and political satire uses, and even then there is a limit as to how much can be fairly used.
Having a federal copyright registration protects you.
It took me many years, but I have come to advise clients of the reality of copyright infringement and enforcement. The fact remains that unless the infringing use will result in hundreds of thousands---if not millions---of dollars in damages, you will be usually hard-pressed to find a lawyer who will set foot in FEDERAL court to represent you. Oh, and do you have at least $10,000 - $25,000 to front the litigation expenses? I thought not. I'm not sayng that it is impossible, but it is difficult. Start by doing what you can so that your work does not end up in the wrong hands in the first place.

Of course keep in mind that without a federal registration you have almost NO chance of enforcement because the registration confers upon you all sorts of remedies and rights that make it possible to sue. Without it, you will have to bring state common law actions in each and every state where an infringement occurs, and have the heavy burden of proof to prove ownership, infringement, and actual damages. No attorney fees award here either. Lose-lose situation.
© Symbol.
Under the current U.S. Copyright Act of 1976 (as amended by the Berne Convention treaty effective March 1, 1989), you no longer MUST use the copyright symbol "©" on your works. Under the old law, if you omitted it even on a single published copy, you just flat-out lost your copyright forever. Phew! Good thing that's not the law anymore! But it does not mean that you shouldn't still use it. Using © is a bit of extra warning----"Hey YOU! Yeah, you! Don't even think about stealing or using this because it belongs to ME."

But even more so, if you don't use the © symbol and someone infringes your work, then they could argue a defense of Innocent Infringer, which is a lesser violation of the law.

Proper Usage: © [DATE], [OWNER NAME]

© symbol should not be confused with the trademark symbols ® (registered trademark) or (unregistered, or common law trademark); or with the phonorecord symbol [P in a circle] for physical copies of sound recordings.
Contact with any of your copyright or other legal questions and needs. Consultations are complimentary.


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