Copyright Registration Issues
Afraid to Talk About This… Honestly..
Why? Because so many writers are so uninformed, they think they need to “copyright” a work before they have protection.
Uhhh, no, copyright protection is automatic when you put a creative work into a form. If you have a desire to be a writer, learn copyright.
But there are reasons to register copyright. Especially here in the US.
Kris and I have made it a long practice to register every work that is getting sniffed at by movies or television or streaming or gaming.
But a lot of our novels and short stories, we have not registered. (For you uninformed out there, that does not mean those stories and novels are not protected by copyright law… sigh… Registration is not a requirement for copyright protection in any country under the Berne Copyright Convention.)
US registration, boiled down to so simple as to be silly, gives you a few things here in the US. It give notice to others (in theory but not in any real practice) and under US law, if you register the copyright in a timely fashion, you get what are called “statutory damages” meaning you do not have to prove you were damaged in a theft. You also have to register before you can file a suit.
Those damages can get stupidly expensive for someone who thinks they can just take your work and use it.
So thanks to the new copyright thieves that have come onto the scene, I have been doing a bunch of research into registration, an area of the copyright law I seldom paid much attention to. Mostly I wanted to find out if you could register a collection of single-author stories, would that one registration give statutory damage protection to all the stories in the collection.
Answer… If you do it right and only if certain restrictions are met. Sigh… Sounds like the government, doesn’t it?
— A registration of a collection gives damages if done timely for the form of the collection, not the stories inside the collection.
You can, under one fee, group a bunch of stories together if done by the same author and a few other things, IF THEY ARE UNPUBLISHED.
So otherwise, on published stories, you have to register them all one-at-a-time. I have upwards of 500 or more published short stories, about 20 of them are registered. So that is a non-starter. (Again, they are all protected, just not registered…)
So Kris and I will continue on with our normal registration practice that has served us very well over the decades. But I was so hoping for a different outcome in my research into that stupidly-stupid area of copyright law.
Sorry, writers, that I didn’t have a better answer.
13 Comments
Kristi N.
Question on copyright versus registered copyright on the published work…most templates have the copyright date. If you register after that date/year, do you add another line for registered copyright, or never put registered on at all? Thanks, Dean, for bringing up this fascinating topic!
dwsmith
Kristi, there is no difference between copyright and registered copyright. And Kristi, the need to put a copyright date on anything in the US went out in 1987 or so. Before 1987 it was critical and if not done you could lose your copyright, have it drop into the public domain. For 38 years copyright has not been needed on a book or story for any reason. But that habit lives on and sometimes helps readers.
C.E. Petit
A couple of ridiculously technical notes on this area. The zero-level thing to be aware of is that US Copyright Office declarations of what copyright law is/is not are not themselves law. They’re what’s called “persuasive authority,” and many courts will follow them — but not always, and certainly not always at the extremes. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (Supreme Court rejects five different technical assertions by the Copyright Office of “what the law of copyright is” in a pro-author decision).
One example is the issue of exactly what is covered by a group registration versus the registration of a collection; the Copyright Office circular is, to put it rather bluntly, wrong in its implication that only the entire collection is protected. It is instead a remedies snarl on how many measures of statutory damages can be assessed if the entire collection is copied — just one measure for the collection, or one measure for each infringed story/photograph/painting/article? However, a group or collection registration does suffice to individually protect each element, and allow filing suit and winning on liability if one one out of 34 stories is actually infringed. Depending upon which circuit one is in, etc. — this is not something to trust either a nonspecialist attorney or general guidebooks/treatises on; it’s very fact-specific.
One other thing that the timing of registration affects is whether an award of attorneys’ fees is available. If the infringement takes place “before” the effective date of registration, no attorneys’ fees can be assessed under § 505 (although, in a class action like the just-announced settlement against Anthropic, they might become due under Fed. R. Civ. Proc. 23). The “effective date of registration” is the earliest of:
• The date of the application for registration, if the registration fee and deposit were timely (although even the deposit requirement is questionable);
• For most “published” works,† the date of publication if the application was made within 90 days of the official date of publication; or
• For certain non-US works first published outside the US, the later of that date of publication or completion of statutory requirements in those nations (for example, in the UK the date on which the mandatory deposit copy was sent to the British Museum).
Just to make all of this more fun, the whole business about “marking” no longer being required that Dean referred to was announced in early 1988, effective for any “publication” (not just the first one) on March 1, 1989, and has a convoluted “cure” procedure applying only when a third party like a commercial publisher failed to mark properly. And is even more dubious in Latin America.
† Naturally, the Copyright Act does not define what “published” means, and refuses to use “made available to the public” (the Berne Convention term) without actually saying what that distinction is.
dwsmith
Thank you, C.E. Fantastic detail and information to prove once again when I say copyright is complex and critical for writers to learn.
Thank you for spending the time. Really appreciated.
Michael W Lucas
Yep. I choose to register everything I publish, except for a couple bits of flash fiction that appeared on my blog. I suspect it’s PTSD from working in tech for decades. 😉 Filling out the paperwork gets easier with practice, and if you do it online pre-publication they’ll accept a PDF instead of a print copy.
You gotta make your own choices, of course. Know the rules and choose your pain.
dwsmith
Yup, Michael, informed decisions are always the best. Smart doing that from the start, especially in the tech world.
Dayle
I’m looking at doing this first for my stories that were in AHMM.
Looking on the copyright.org website, there’s something called “Group Registration of Contributions to Periodicals.” Would that apply in this instance?
Thanks!
dwsmith
Nope, afraid not, Dayle. All the same issue. Read deeper in the instructions on that.
Dayle
Ah, I was afraid of that. Thanks for clarifying!
Brad D. Sibbersen
I’m of the opinion that it’s always better to register, just in case. A small up-front cost for peace of mind. Dean’s situation — having so many works that have already been published — is unique, but for the rest of us, if you’re regularly producing stories it’s no thing to do a group registration every time you get ten done, before you publish them. “Group Registration of Unpublished Works” is the form you want to use and it’s MUCH cheaper than registering everything individually.
dwsmith
Cheaper, yes, less time consuming, no.
Until AI came along with wholesale thieves like ChatGPT, in 40 years I had one theft and dealt with that without registration. Same with Kris.
We register if the story is headed to movies or streaming or gaming. And the first books in the series.
Reace Stanford
Could you go into more detail about insurance for legal cost of defending copyrights?
dwsmith
Don’t have a clue. In 50 years never had to do it.Other than being a part of the class action suits against AI theft.
But it would depend on about a thousand factors, including if you get some local attorney (not suggested) or go with national experts (big law) and then the nature of the case.