Copyright Formalities: Tuxedos Optional (Part 1)

In the United States, the term “copyright formalities” refers to two different actions: placing a copyright notice on creative works and registering copyrighted works with the U.S. Copyright Office. Today, we’re taking a closer look at the copyright notice.

Copyright “formalities” are requirements for obtaining certain types of protection and damages (for example, statutory damages for infringement) but do not affect the  existence of the copyright.

Copyright attaches to qualifying works automatically and at the moment of creation (assuming the works are properly fixed in a tangible medium” as we discussed in more detail last week). Use of a copyright notice is not required for obtaining or maintaining your copyright. However, use of the notice entitles the author (or copyright owner) to certain remedies which aren’t available for unregistered and unmarked works.

A valid Copyright Notice consists of the word “Copyright” or the copyright symbol, © , the publication date, and the name of the copyright holder.

For example, this post is  © 2013, Susan Spann.

You can flip the order of the name and year if you choose. That has no impact on the notice. Where the content changes regularly, for example a website or blog, the copyright notice often takes a slightly different form. For example: © 2011-2013, Susan Spann – where the first year represents the year the blog was started and the last year represents the current year.

Originally, U.S. copyright law required the notice in order to establish proper copyright, but that is no longer the case. The current law does not require a copyright notice on copyrighted works. However, Congress encourages “voluntary notice” to put people on notice of the owner’s claims to copyright.

This has two important consequences for authors and bloggers:

First, you must assume all written works are subject to copyright whether or not they bear a copyright notice.

While older works, and copyright released works, may be in the public domain,  “knowledge” is not an element of infringement – which means you can be legally liable for copyright infringement even if you didn’t know the work was subject to copyright. The solution? Assume all works are copyrighted until accurate research proves otherwise.

Second: you should always place copyright notices on your works. The copyright notice (and proper registration) entitle the copyright holder to claim certain statutory damages if the work is infringed. These statutes do not require a showing that the author lost money or was otherwise “measurably harmed” by the infringement. This means that failing to include a proper copyright notice can keep you from receiving all the damages you might otherwise receive if your work is infringed.

Don’t let that happen.

Protect your rights.

Pay attention to the formalities.

Research all written works before copying or using them yourself, and include proper copyright notices on your own work when you publish in any form.

The manuscript-sized tuxedo is optional.

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