Intellectual property rights, such as copyrights in original artistic works, have become so complicated in this Internet age of instant, worldwide distribution of a creator's work that the U.S. government has taken significant steps to control the process behind infringement claims and also make them easier to prove. Through such legislation as the Digital Millennium Copyright Act, copyright holders have specific recourse against infringers in federal court.
Common Law Rights
Copyright is the right of the creator of an original work to profit from its use, sale, distribution or replication. This right attaches automatically once the work is committed to a tangible form. This automatic attachment stems from the historical rights in intellectual property that are a holdover from the common law system on which the U.S. legal system is based. This means in practice that the creator owns the copyright in original work, whether or not he does anything else to substantiate the copyright, such as registering it with the government. He simply needs to prove he was the first to create the original work.
Common law copyright is an unenforceable right in the U.S. In an effort to normalize copyright law to protect creators in a digital age, the U.S., government preempted copyright enforcement throughout the land. This means that copyright claims can only be pursued in federal court and can't be brought in state court under a common law cause of action. To qualify to bring an infringement claim in federal court, the court must have jurisdiction over the matter. The only way for the federal court to have jurisdiction is if the creator registers the copyright with the U.S. Copyright Office pursuant to federal law.
The only way to stop a person from infringing on a copyright is to sue in federal court. To sue in federal court, the creator must first register the work with the U.S. Copyright Office. A creator may register his copyright with the government even after the infringement has taken place. If someone has stolen your copyrighted work, determine if your work is registered. If it isn't, immediately register it. Registration is a simple online process that's handled from the copyright office's website. With registration in hand, send the infringing party a letter, demanding he cease and desist the infringing behavior. If he refuses or doesn't respond, you may file a federal court action for an injunction and for damages.
The benefits to federal registration of a copyright are numerous. Registration not only allows the creator to sue in federal court — it also places the burden on the alleged infringer to prove he hasn't committed an infringing act. Further, the federal statute establishes statutory damages that may be claimed in lieu of actual damages. This means the infringer has to pay the statutory amount for each infringement, whether or not the creator is actually damaged by the theft. If someone steals your original work, file a petition with the federal court for the district where you live for an injunction to stop the use and for damages.
- The First Amendment Handbook: Chapter 10 — Copyright — Legal Action to Protect a Copyright
- SBA.gov: Patents, Trademarks and Copyright
- Citizen Media Law Project: Copyright Registration and Notice
- U.S. Code: Title 17, Section 301 — Preemption With Respect to Other Laws
- U.S. Copyright Office: Copyright Basics
Terry Masters has been writing for law firms, corporations and nonprofit organizations since 1995. Her online articles specialize in legal, business and finance topics. She holds a Juris Doctor and a Bachelor of Science in business administration with a minor in finance.