By: Jarrett Rumoro
Cervitude™ Intelligent Relations Consultant, IP and Business Specialist
Copyrights – If you are an artist, actor, performer, entertainer, author, singer, blogger, or any other creator, you very likely know something about copyright law. Copyright law is the way most creative professionals make money, and protect the fruits of their labors. Copyright protection will extend to any original work of authorship fixed in a tangible medium of expression. Thus, the three key requisites for copyright protection are: (1) Originality; (2) Fixation; and (3) Expression.
The threshold for originality is very low. The work must contain some creative spark, or a “modicum of creativity.” The author must make conscious choices about how to express something, and this particular selection/arrangement will be protectable under copyright law. With respect to fixation, the law regards a work as fixed when an authorized embodiment has been created in a copy or phonorecord that is sufficiently permanent to permit the work to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration. If it can be recorded or taped, or saved on file, or printed on a printer, then it almost always can be copyrighted. Additionally, the copyright of a work will only extend to the author’s unique particular expression, and not the overarching idea. The more expressive a work or the more elements of creativity that a work has, the more protective the work becomes. In other words, copyright law will ask: is the book about a young wizard, or is the book about a young wizard named Harry Potter who studies at Hogwarts School of Witchcraft and Wizardry. Copyright will extend to the expressiveness of who, what, when, and where, but not to the overarching idea or genre. Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. And while you need not file for copyright protection to actually own a copyright, there are key benefits of owning a federally registered copyright: (1) Your © is public notice of your ownership rights. Once registered your work will be published in the Copyright Office’s Catalog and therefore is available to the general public.
In short, a federally registered copyright places the general public on constructive notice that you own the work and such a registration would defeat a claim of accidental or innocent infringement; (2) Copyright ownership gives you the power of proof, legal proof that is, that you own rights. If a business later claims you do not own a copyright, your federal registration will serve as your proof which will avoid an expensive legal hurdle to prove ownership rights; (3) As long as your copyright is federally registered within five years of its first publication, you will have validity which will prevent future challenges to your rights in the work; (4) Perhaps the most significant benefit, at least from yours and your lawyer’s perspective, is the federal registration allows for maximized damages in a lawsuit. So long as you have filed in a timely manner, your federal registration will not be limited to the actual damages, but rather you will also be entitled to statutory damages and attorneys’ fees (could be up to $150,000 USD per infringement, plus attorneys’ fees). Therefore, timing of the federal registration is of the essence; (5) As important as damages, is the right to bring the lawsuit at all. A federal US registration is a prerequisite to filing an infringement copyright lawsuit at all (unless rare circumstances exist). No federal registration, no lawsuit for copyright infringement, period. Knowing these benefits and how to obtain them are key. We recommend you register your copyrights as soon as possible after creation. And you know what? It’s relatively inexpensive to do it! Currently, the typical filing fee for a copyright registration is either $35 or $55, depending upon the circumstances. If you have questions, are ready to federally register your work, or want to know more about your copyrights in general, please contact us today!
How do you make money with copyrights?
Copyright is the form of intellectual property that is perhaps most recognizable to the general public. People have seen the famous © symbol in some form or another, whether on the bottom of a website or a photograph, or book, or maybe on the jacket of their favorite CD or DVD. In either case, the copyright symbol serves as notice to the rest of the world that an owner is claiming copyright ownership in a particular work of authorship. The 1976 Copyright Act generally gives owners of a copyright a “bundle of rights” which include the exclusive rights: (1) to reproduce the copyrighted work, (2) to prepare derivative works, (3) to distribute copies or phonorecords of the copyrighted work, (4) to perform the copyrighted work publicly, and (5) to display the copyrighted work publicly. Copyright ownership gives an author the aforementioned bundle of rights, and in essence each of the individual rights could be a potential source of revenue for the author. Usually, a savvy copyright owner will segment the rights and try and attach royalty revenue streams to the ends of each branch of the bundle of rights. Let’s take a few examples to see how one would make effective and profitable use of the bundle of rights covered by copyright law:
EXP: I’m sure you’ve heard of David Bowie. David Bowie is THE iconic musician whose music and talent transformed the landscape of the music industry, and entertainment industry more generally. One thing David Bowie did well, very well in fact, was monetize his copyrights. Mr. Bowie raised over $57 Million USD by selling bonds that were backed by the royalties he was receiving from his music and sound recordings.
EXP: We all know the Beatles. We all know Michael Jackson. But not all of us know that Michael Jackson actually bought all the music publishing rights to the Beatles catalog in 1985, for around $47 Million USD. Yes, that’s right, Michael Jackson outbid Paul McCartney on his own band’s music copyrights. And not only did the Beatles catalog of copyrights fetch this price, but later in the late 1990s and early 2000s MJ would leverage his copyright ownership rights again and borrowed as much as $200 Million USD against the catalog so that he could pay down outstanding debts.
Author: Jarrett Rumoro is an Intellectual Property and Business Specialist Consultant at Cervitude™ Intelligent Relations. Connect with Jarrett on LinkedIn today.