Do I Automatically Get Copyright Protection When I Create Something?

Following up on my What’s the Difference Between a Trademark, a Copyright, and a Patent? blog post, someone asked, “Do I automatically get copyright protection when I create something?” And the short answer is yes – sort of. 

Automatic Protection

In the United States, copyright protection attaches automatically to original works of authorship upon being fixed in a tangible medium of expression. But that’s only true if the work is both original and isn’t merely an “idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 

What qualifies as original can get tricky. The Supreme Court wrestled with this in 1991 in what has become the landmark copyright case on the subject, Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). In Feist, the Court had to decide what level of copyright protection, if any, should be afforded to what amounted to a phonebook. The Court phrased it as follows: 

“This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other is that compilations of facts generally are. Each of these propositions possesses an impeccable pedigree. That there can be no valid copyright in facts is universally understood . . . At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright.”

The Court resolved this conflict by adopting what is sometimes referred to as the “creative spark” test. This test basically sets an extremely low bar on what qualifies as “original,” and almost any creative choices that distinguish one work from another may have sufficient creative spark to be original under copyright law. Of course, although low, the bar does exist, and the Feist court decided that the alphabetized phone book at issue was not sufficiently original. 

Once you’ve established originality, copyright technically applies automatically. But that’s only half the picture. Pursuant to 17 U.S.C. § 411, you can’t sue for copyright infringement until you’ve registered your copyrights. Even then, your rights are greatly affected by when you file for a copyright registration. 

Why Registration Still Matters

Let’s start by talking about everything you might be entitled to under the Copyright Act if you perfect all of your rights in a timely manner. If you timely register your copyright, the Copyright Act provides that your registration serves as prima facie evidence of the validity of the copyright and of the facts stated in the certificate. And suppose you need to sue on those copyrights. In that case, you may be entitled to actual damages and any additional profits of the infringer, or statutory damages, plus attorneys’ fees and costs. But a lot of these benefits get lost if you don’t act on time. 

Starting in reverse order, pursuant to 17 U.S.C. § 410(c), you have 5 years from the first publication of your work to register your copyrights. If you miss that deadline, you lose the presumption of validity of your copyrights that comes with registration. The registration certificate is little more than a key to the courthouse for you to sue for infringement, but the burden of establishing your rights in the work is on you to prove. With a timely registration (within 5 years of publication), the registration’s value as prima facie proof of a valid copyright means that the potential infringer has the burden of disproving the facts in the registration, as opposed to you having to prove those facts at trial. 

Damages and fee awards can also be impacted if you don’t timely register your copyrights. Pursuant to 17 U.S.C. § 412, a copyright holder is not entitled to statutory damages or attorneys’ fees if infringement of the work commenced before the work was first published or when infringement begins before registration (unless infringement begins after publication and registration is made within three months after first publication of the work). That’s a mouthful, but the bottom line is that in most cases, you want to register your copyrights before infringement occurs. 

The loss of statutory damages and attorneys’ fees is often the difference between having a genuinely enforceable claim that merits litigation and having a theoretical claim that would cost more to pursue than you could hope to recover in litigation. 

Statutory damages for copyright infringement are defined in 17 U.S.C. § 504(c) and entitle the copyright holder to recover “a sum of not less than $750 or more than $30,000 as the court considers just” and, in the event of willful infringement, up to as much as $150,000 per infringement. 

In many instances, actual damages and infringer profits can be pretty small. I frequently see photograph license disputes where the copyright holder offers licenses to use photographs for tens or hundreds of dollars per picture, and where an infringer might use a photograph as a background image on its website without paying the license fee. In cases like this, actual damages might be a little more than the lost license fee. The cost of litigation without the opportunity to pursue statutory damages and fees makes pursuing those claims cost-prohibitive. Rights are only as good as your ability to enforce them. Without statutory damages and entitlement to recover attorneys’ fees, you may have the right to sue, but not the practical ability to make it worthwhile.

The Bottom Line

Yes, copyright protection attaches automatically when you create something original. But registration is what turns those rights into something enforceable. Early registration makes it easier to prove your rights, recover meaningful damages, and deter infringement.

To develop a copyright protection strategy that fits your business, contact Jimerson Birr.