You may already have copyright

You finish a drawing, save a photograph, or record a song. Later, someone asks whether you have protected it. If your answer is "I haven't filled in any forms," here is the good news: you already have copyright in that work. No form created it.

In the United States, copyright exists from the moment an original work by a human author is fixed in a tangible form: saved, written down or recorded so that it can be perceived, directly or with a machine. 12 That happens while you create. For a work you create on your own today, copyright lasts for your life plus 70 years. 16

What automatic protection means

A draft is protected before you publish it. A photograph is protected before it earns money. You do not need a copyright notice or a registration for the copyright to exist: registration is voluntary, and a notice has been optional since March 1, 1989. 124

Copyright protects your expression, not what sits underneath it. It does not protect ideas, procedures, methods, systems, facts, titles, names, short phrases or slogans. 17 If you photograph a familiar landmark, your original photographic choices are protected; the landmark does not become yours.

Automatic does not mean that every file you save belongs entirely to you. Check four things:

• Your job. Work you create as an employee within the scope of your employment is a "work made for hire": your employer is the author and owns the copyright unless you both signed a written agreement saying otherwise. 13
• Your collaborators. When two or more people create one work intending to merge their contributions, they are joint authors and co-own the copyright. 37
• Borrowed material. When you build on someone else's work, your copyright covers only what you contributed, not the material you started from. 7
• Your agreements. A transfer of copyright ownership is valid only in a writing signed by the owner. Owning the file, the print or the laptop does not give you the copyright, and selling them does not hand it over. 3

Why registration still matters

Copyright exists without registration, but registration decides what you can do when someone copies your work:

1. You need it to sue. For a U.S. work, you cannot file a federal infringement suit until the Copyright Office has registered your claim or refused it. 14
2. It keeps statutory damages and attorney's fees available. You can claim them only for infringement that began after your registration's effective date, or, for a published work, if you register within three months after first publication. 14
3. It is evidence. A registration made before or within five years after first publication is prima facie evidence that your copyright is valid and that the facts in the certificate are true. 14
4. It puts your claim on the public record and lets you record it with U.S. Customs and Border Protection against imports of infringing copies. 1

The effective date of registration is the day the Copyright Office receives your application, your copy of the work and the fee in acceptable form, not the day the certificate arrives. 1

So "copyright is automatic" and "register your work" are both true. One tells you when the right exists; the other gives you the record, the access to court and the full remedies. A registration does not guarantee that you win a dispute, and having no registration does not mean you have no copyright.

Register the works you would defend. For a work you are about to publish, register before publication or within three months after it. Apply online through the Copyright Office's Electronic Copyright Office (eCO) Registration System 8, and check the current fee on the Office's fee page 9. Your first U.S. copyright application walks through each step. If someone is already copying a work you have not registered, file the application now and talk to a copyright litigation attorney before you send a demand or file suit.

"Common law copyright" is the wrong name

You may hear automatic protection called "common law copyright." For work fixed in a tangible form, that label is wrong: since January 1, 1978, the federal Copyright Act governs these rights exclusively, and no one can claim equivalent rights under state common law. 6 Your protection comes from the statute, and it starts when you fix the work. You do not have to sell it or use it commercially. 1

Trademark works differently. Using a brand name or logo in commerce gives you common law trademark rights, but you can enforce them only in the areas where you use the mark. Registering it with the USPTO gives you rights throughout the United States, a legal presumption that you own the mark, and the right to sue in federal court. 5 Keep the two rules apart: making an original work gives you copyright, while using a brand gives you trademark rights.

Begin with the work you have

1. Keep the original file and the meaningful drafts, with their dates.
2. Write a short note on who contributed what, and keep any agreement about ownership or permission next to the work.
3. Do not rely on mailing a copy to yourself. This "poor man's copyright" has no basis in copyright law and is not a substitute for registration. 2
4. Pick the works that matter to your income or your plans and register them, before publication or within three months after.