Copyrights 101: What You Need to Know

Copyrights 101: What You Need to Know by Pat Werschulz

Copyright is an area of intellectual property that is just as important as patents and trademarks. There are a lot of questions and misconceptions about copyright: 

  • How do you get a copyright?
  • Who owns the copyright?
  • When does a copyright take effect? 

Step 1 – Date of Creation 

In 1989, the United States became a signer of the Berne Convention. Under this international treaty,  copyrights take effect as soon as an idea is embodied in fixed media. What does that mean? It means if you write your idea down on a piece of paper, store on your hard drive, paint it on a canvas, carve it in marble, or capture an image — these are all ways of fixing in media.

Step 2 – Register Your Copyright

The next step is registering your copyright. You have five (5) years after the date of creation to register it, and the registration process takes little effort or expense. What does that do for you? Well, if it’s something valuable, or it’s something you think could be valuable, it’s likely that other people want to copy it. Defending your copyright is much simpler if you register your copyright with the copyright office. That’s because when you go to court, there will be a presumption that the work is yours because you have the registration. You do not have to prove any type of economic damage to be eligible for statutory damages. In other words, the judge will look at the case and say for each occurrence, it is worth X number of dollars. Your damages are the number of occurrences multiplied by that dollar amount as a matter of law, without you having to prove any injury, economic loss, or the amount of money the other person may have gained by copying your work.

One of the tricky parts is going backwards and looking at copyrights because the copyright law changed a lot in the 20th century. Sometimes it was made retroactive. There were a lot of different conditions that had to be met to extend the copyright on works before 1996. And that’s where you really need somebody who knows copyright law to determine if the copyright still exists. 

Patricia Werschulz

Patricia P. Werschulz
Werschulz Patent Law, LLC
23 North Avenue East
Cranford, NJ 07016
908-313-2347
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