SandBar 7:1, Regulatory Takings Issue, April, 2008

Protecting Your Copyrighted Works

By Will Wilkins

In prior articles in this series, we discussed copyrights in general as well as the more specific issue of when and how you can use someone else’s copyrighted work. In this article, I will continue to look a bit more specifically at copyright protection and how you can protect your own creative works.
      In other words, what do you need to do to protect a book, article, website, etc. you have created? As I discussed in the last article, there are certainly times when other folks can use your work without your permission but there are also times when use by another would constitute copyright infringement and we’re going to discuss ways of protecting against the latter (infringing uses) in this article.
      Let’s take a brief step back here at the outset and review what exactly can be copyrighted.   Copyright protection exits in this country for original works of authorship which have been placed in tangible form for a limited period of time. The first requirement, thus, is that the work must be original – that is, it must be the work of the creator (not your neighbor) and it must be, at least in a basic sense, creative. Second, the work must be one of the types of works decreed in the copyright statutes to fall under the protection of copyright which includes such things as: books, articles, plays, music, and artwork. Finally, the work must be in tangible form which means somewhere other than rattling around in the creator’s head. As long as the work is on paper, computer, or any other type of recoding media it easily meets this requirement.
      What else is required technically to create a copyrighted work? Nothing at all. Short article, right? Basic protection is, in fact, that simple. If a work is an original “work” and in tangible form, it is protected by federal copyright law. However, the story does not necessarily end there. There are several additional steps you as the creator can take to protect your works.
      One method of enhancing copyright protection is by registering the work with the Library of Congress. Registration is relatively inexpensive and simple. It involves filing in a form and mailing the form, a check with the filing fee, and a sample of the work to the Library of Congress. Registration is required before copyright enforcement in federal court and, once a case is in court, provides several legal advantages including shifting the burden of proof and the availability of additional damages. So, registration can be a valuable step in protecting your copyright.
      An even simpler method of protection is to use a copyright notice. The copyright notice was once required on works claiming protection but this is no longer the case. Use of the notice on works, however, has a tremendous deterrent effect. People see the notice and think “well, that work is protected, I’ll look elsewhere for materials for my website.” The form of the notice can be one of the following: [A9your name, date] or [copyright, your name, date]. For example, on this article I could mark it “A9 Will Wilkins, 2008.” Notice is a great and cheap way of protecting copyrighted works.
      Another deterrent-type protection is simply being careful with what you do with your works and how you use them, especially works used on the internet. If you do not want your work copied from your website, protect the work as best you can. With photos, use a low-resolution image that looks good on the website but does not print well. Watermarks may also be helpful. For textual works, PDFs may provide protection over more easily editable formats.
      Of course, there are times when nothing you can do will deter a determined copyright infringer. So, what should a copyright owner do when his work has been used without permission or legal justification (fair use, etc.)?
      The answer, of course, is check with his attorney. Strategies often employed include demand letters and lawsuits. If the infringement is online, a simple approach is to notify the infringer’s website hosting site asking them to shut down the infringing website. This procedure, created under the Digital Millennium Copyright Act, is outlined on the Library of Congress’ copyright website.
      The good news is that simple measures such as registration and the use of copyright notice generally deter most infringement. These steps are inexpensive and effective.
      In the next issue, we will turn toward the seemingly simple question of: who owns that copyright? Stay tuned.