Works not eligible for federal copyright protection include: works that have not been fixed in a tangible form of expression; titles, names, short phrases, and slogans; familiar symbols or designs; variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents; ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices; and works consisting entirely of information that is common property and containing no original authorship.
To secure a Copyright, it is important to understand that as soon as the original work is “fixed in a tangible medium of expression”, such as a manuscript, CD, DVD, computer file, and the like the work automatically becomes the property of the author who created the work, and a Copyright exists from that moment forward. Because of this, Copyright ownership (including exclusive licenses) can only be transferred in writing to be valid. However, while the Copyright exists from the moment the pen lifts from paper, without a formal registration, the author’s ability to enforce that Copyright is limited.
Copyright registration may be made at any time. Registration is a legal formality and is not required for existence of the Copyright or a condition of copyright protection. However, federal copyright law provides several inducements and advantages to encourage owners to register, namely: (1) registration establishes a public record of the Copyright claim; (2) registration is necessary before an infringement suit may be filed in federal court; (3) registration will establish prima facie evidence in court of the validity of the Copyright and of the facts stated in the certificate if made before or within five years of publication; (4) statutory damages and attorney’s fees will be available to the owner in court actions if registration is made within three months after publication of the work or prior to an infringement of the work; and (5) registration allows the owner to record the registration with the U. S. Customs Service for stop importation of infringing works.
In addition to filing copyright registration applications for the works noted above, from both legal and business standpoints, it is a good strategy to file copyright registration applications for design marks in addition to trademark applications. Design marks include graphical logo designs and other decorative features that are placed on packaging materials or used in advertising. If you or a non-employee did not create the work (e.g. design for a design Mark), then a written assignment from the author (e.g. independent graphic designer) to you will be necessary in order for you to claim ownership in the Copyright of the work.
Typically, after filing of a copyright application, no further interaction with the copyright office is required. However, at times, prosecution with the office is required and if so, we at Booth Udall Fuller will provide you with what is required to complete registration of your Copyright. In conclusion, Copyright registrations represent the most basic and simplest way to protect your creativity and are key to adequately protecting and asserting your rights to your company’s brand and value.