In March 2019, the Supreme Court clarified that a copyright owner may initiate a suit for copyright infringement only under the Copyright Act of 1976 after the Copyright Office has either approved or denied the owner’s copyright application for the work, settling the debate on whether merely filing a copyright application was sufficient for standing to sue under the Act. See Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC. Practically speaking, this holding creates an incentive for potential copyright owners to seek registration for their works as soon as possible. Otherwise, a copyright owner whose work is being infringed will have to wait as long as six months or more to pursue the infringer.

What are copyrights and why are they important?

First, copyrights exist only under federal statute; there are no state copyright rights. Copyrights protect original works of authorship that are fixed in a tangible medium. Basically, copyrights protect creative ideas that have been put to paper (or input into a computer), such as the original and nonfunctional aspects of a building’s design. Copyrights do not protect: 1, general ideas, such as the idea of a spiral staircase; 2, common building blocks of design, such as the existence of windows or doors in the design of a home; or 3, functional elements of a design, such as the placement of support walls or design solutions required to conform the building to the lay of the land.

Copyright rights automatically vest in the author of a work upon fixation of the work in a tangible medium, but cannot be enforced until the copyright is registered or a copyright application has been refused. The benefits of copyright ownership are the right to prevent others from copying, displaying, distributing or creating derivative works based on the protected work, including the availability of statutory damages up to $150,000 per infringement and the recovery of your costs and attorney’s fees from an infringer. This last element is important because someone who is sued for infringement knows there is a possibility of having to pay the copyright owner’s attorney fees. This often leads to
quick settlement of copyright infringement lawsuits.

Example 1: An architect owns a copyright in a building design and the developer fails to pay the architect on time. The architect can sue the developer to stop construction of the building and use the copyright to force a quick payment.

Who owns the copyright when there are multiple authors?

The author of a work is typically the owner of the copyright. However, disputes as to ownership sometimes arise as ownership initially vests with the commissioned party, rather than the commissioning party, even though the commissioning party is paying for the work. This situation can be changed by contract, such as when a developer requires that it owns the copyright to work being done by an architect. Joint ownership is also possible when there are multiple authors to the work, and each joint owner can independently exercise all of the copyright rights in the work.

Example 2: A developer commissions an architect to design a house, and the agreement does not specify who owns the copyrights. After the house is built, the developer decides to build another house based on the same building plan. Here, the developer is infringing on the architect’s copyright rights by building the second house without permission.

When should I file a copyright application?

A copyright application is best filed within three months after the work is made public in order to be accorded the full scope of possible rights. Authors can apply for their own copyrights using the Copyright Office’s website (www.copyright.gov) for as little as $35. However, care must be taken to complete the form with precision or the enforceability of a copyright may be affected.

Example 3: The author of an unregistered work discovers that an infringer has been infringing on the author’s work. The author must wait to sue the infringer until the Copyright Office approves the author’s copyright application for the work. Depending on when the work was published and the application filed, the author may not be entitled to recover his or her attorney’s fees or statutory damages.

Do I need to use the © symbol to enforce my copyrights?

The use of the © symbol is not required for enforcement, but it does put potential infringers on notice, and maximizes the damages that can be claimed by eliminating a “good faith” defense. Proper copyright notice consists of: 1, the symbol ©, the word “Copyright,” or the abbreviation “Copr.;” 2, the year the work was first published (or made public); and 3, the name of the owner of the copyright in the work. Because copyright notice is not required, don’t be fooled by a lack of copyright notice. Always ensure you have the owner’s permission to use or modify the work.

Example 4: A developer obtains a blueprint that does not contain a copyright notice and proceeds to build the building described in the blueprint without securing permission from the author. The developer may be liable to the author for copyright infringement, even though the developer was not explicitly aware of the author’s copyright rights in the blueprint.

Example 5: The copyright notice “© 2019 Schwabe, Williamson & Wyatt” would be appropriate for this article.

To summarize, copyright protection can be a valuable asset to both architects and developers. It pays to file for copyright registration as soon as possible, and using copyright notice can reduce the likelihood of infringement and can increase a recovery in the event of an infringement.

Column first appeared in the Daily Journal of Commerce on June 25, 2019.