Asked and Answered: What good is having a copyright if I don't have money to sue an infringer?

“Asked and Answered” will be a new occasional feature of this blog.  From time to time, I'll answer some of the most frequently asked questions I receive in my practice.

This is intended as general information only and  does not establish an attorney-client relationship.  It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter.  We will not be responsible for readers' detrimental reliance upon the information appearing in this feature.

Q: Greetings.   I am unclear as to what exactly a copyright protects regarding a screenplay. My basic understanding is that it protects only the expression of an idea and the characters. Could you please elaborate on this? Also, how could a poor man contest an alleged copyright infringement when, presumably, the other side would have money?


A: Your “basic understanding” is correct.  Copyright law protects the original expression of ideas against unauthorized copying.  More specifically, copyright is actually a ‘bundle of rights'.  Only the owner of a copyright may do or authorize:

1. The making of copies of the work
2. the distribution of copies of the work
3. the public performance of the work
4. the public display of the work
5. the making of ‘derivative works' based on the original.

Characters may be protected only insofar as they are original creations of the author, and not generic.  Ideas and facts are not entitled to copyright protection.

The second part of this question underscores the importance of copyright registration.   Copyright protection exists from the moment the work is ‘fixed' in a tangible form, but unless the copyright is registered, the author's remedies may be very limited.

If a work is properly registered with the U.S. Copyright office within 90 days of its first ‘publication' (essentially meaning distribution to third parties), the author may, in the event of an infringement action, be entitled to an award of attorneys' fees and so-called “Statutory Damages” of as much as $150,000 per infringement.     So, by registering copyright early, an author preserves, at least theoretically, his ability to hire a lawyer to represent him, should the work be infringed.

If registration is delayed or non-existent, however, the author will be required to prove actual damages, and will bear the cost of his own attorneys' fees.

Readers of this column have no-doubt heard about the so-called “poor-man's copyright”, obtained by placing a copy of the work in a self-addressed envelope and mailing it to yourself.  Sadly, this provides little protection against infringement and similarly small evidentiary value in establishing just when the work was created.  In fact, it is possible to mail an unsealed envelope, obtaining a postmark prior to enclosing anything inside.  So, the postmarked envelope serves as “proof” of very little indeed.

Similarly, readers may have heard that registering with the Writers Guild of America is ‘just as good' as copyright registration.  This too is a fallacy.    While WGA registration provides evidence of the timeline, it does nothing to perfect the author's right to sue, obtain attorney's fees, or statutory damages.

Simply put, there's really no substitute for copyright registration.  Fortunately, the process is simple and relatively inexpensive.  Visit http://copyright.gov for more information  and to register online.

Be warned, however, that registration will take some time.  Once you file the application, it's not unusual for the government to take more than a year to process things.

5 Responses to Asked and Answered: What good is having a copyright if I don't have money to sue an infringer?

  1. Is there a law regarding listing to the radio in the work place 10 members of 12 want the radio ON 2 don’t amd have complained to the boss can they stop us listening to the radio

  2. Another thought. I would think a competent copyright attorney would know pretty much up front if a case has sufficient merit and
    the possibility of a payoff is good and go with the pennyless client. Might said attorney think it a good business deal to forego up front fees? Attorneys are encouraged to do pro-bono work by their Associations as a service to the community and, I’m thinking such work should be a business deductable expense. And might also prove profitable.

    • Competent copyright attorneys know how hard these cases can be. It’s pretty rare for attorneys to take copyright infringement cases on a so-called ‘contingency fee’. The fact is, these cases are very complex, have many possible pitfalls, and can be very costly to pursue. Moreover, unless statutory damages are available, proving “actual damages” can be a tremendous challenge.

      So, while it’s ‘possible’ a lawyer might take on a good statutory damages case for a part of the recovery, it’s anything but a slam-dunk.

      Also… “Pro Bono” is an abbreviation of “pro bono publico”, which means “for the benefit of the public”. Representing a single plaintiff in a copyright suit rarely serves the public at large. Moreover, we attorneys DO handle matters pro-bono. Generally, they’re matters of OUR choosing, that serve a charity or other purpose we favor, usually NOT individual copyright plaintiffs.

  3. So, if during that “up to a year” time it may take for the Copyright office to get to your application, and someone does plagirize your work, will the plagirist get off free since the registration has not been officially registered as yet? Does the registration get dated at the time of application or at the end of that process? Then, mighten that tricky time gap be at a disadvantage to the original writer? He can’t dare to get his work out into the market without a fear of someone possibly using the time gap to his advantage. A bit paranoid
    admittedly, but those possibilites would exist, I would think.

    • Al –

      Registration is effective as of the date the forms are received by the copyright office. Protection actually exists from the moment the work is created, regardless of registration. The registration is only REQUIRED if you’re suing someone, and if done early, allows for attorneys fees and statutory damages.

      There’s no reason to fear showing the work around, as long as registration is filed within 90 days of first publication (meaning sharing with any member of the public).

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