Copyright: Registering Multiple Works, Together

Is it possible to register copyright in more than one work, with a single application and a single fee?

Yes. 

But they don’t make it easy. (Seriously. Just try and find what I’m about to tell you, on the Copyright Office website.) And you're probably going to read this post and say, "what??"  And maybe that's the point. Simple, single work copyright registrations are things you can learn to do on your own. Registering multiple works together, is more appropriately a project for your copyright attorney. It's really complicated. If you do it yourself and make a mistake, your registration is vulnerable to being invalidated in a dispute. And that would be bad. So read on, if only to realize this is something you shouldn't be doing yourself.

There are three ways to register multiple works, together. And words make a big difference, so set your regular vocabulary aside, and understand that when we use certain words in this context (namely, the words “group” and “collection”) they have very specific meanings.

1. GROUP registration
1. Copyright law requires that GROUP registration be permitted for works by the same author all first published as contributions to periodicals.
2. Copyright law permits the Register of Copyrights to specify by regulation other types of works that are eligible for GROUP registration.
3. The Register of Copyright has specified by regulation that the following types of works are eligible for GROUP registration:

                                               i.     Automated databases

                                             ii.     Related serials

                                            iii.     Daily newspapers

                                            iv.     Daily newsletters

                                             v.     Published photographs

4. So what does all this mean? If the works you’re trying to register together are not of the types (listed above) that are specifically (either by law or regulation) eligible for GROUP registration: GROUP registration is not an option for you.
5. If GROUP registration is an option for you:

                                               i.     Make sure your lawyer is reading the regulations really carefully because the GROUP registration requirements for each type of work are not set out on the Copyright Office website, and they’re all different.

                                             ii.     You can’t register online. GROUP registration applications have to be made on paper.

1.     Go to the “Forms” tab at www.copyright.gov and then scroll to “Group Registration Forms”

2. SINGLE WORK registration
1. There are two ways you can register multiple works together, as a SINGLE WORK
2. If the works you are registering have been published, you may register together those that were first published in a SINGLE UNIT OF PUBLICATION.
3. If the works you are registering are unpublished, you might be able to register them together as a COLLECTION.
4. These types of registrations can be accomplished online.
5. But again, there are a lot of very specific requirements that you’re not going to find on the Copyright Office website, so this is an issue where you’re best advised to seek advice from a copyright attorney.

3. It’s really important to understand what “publication” means in this context. If you need a refresher, check my blog post: http://artslawyer.blogspot.com/search/label/publication

Applying For Tax Exempt Status: Higher (and Lower) Fees in 2010

Here's a tip for nonprofits planning to apply for tax exempt status:  get it in gear and apply in 2009, before the fees go up.

As the IRS advises (see explanation, below), an online application system to be known as Cyber Assistant is on the horizon. Once it's launched, the application fees will change again and there will be a reduced fee for organizations applying via Cyber Assistant, regardless of size.

Don't just wait for Cyber Assistant, though, in order to save money. Remember that you face additional  hurdles if you apply more than 27 months after the end of the month in which your organization was legally formed.

From the IRS website:


EO Exemption Application User Fees to Increase in 2010



User fees will increase for all applications for exemption (Forms 1023, 1024, and 1028) postmarked after January 3, 2010:


• $400 for organizations whose gross receipts are $10,000 or less annually over a 4-year period
• $850 for organizations whose gross receipts exceed $10,000 annually over a 4-year period
• $3,000 for group exemption letters.


A complete schedule of all user fees will be published in the annual procedure released in January 2010.


Cyber Assistant, a Web-based software program designed to help 501(c)(3) applicants prepare a complete and accurate Form 1023 application, will become available during 2010. Once the IRS announces the availability of Cyber Assistant, the user fees will change again:


• $200 for organizations using Cyber Assistant (regardless of size) to prepare their Form 1023
• $850 for all other organizations not using Cyber Assistant (regardless of size) to prepare their Form 1023.


IRS will announce when Cyber Assistant is available and the effective date of the user fee change. Subscribe to the EO Update to automatically receive an alert that Cyber Assistant is available.

 
This post is not legal advice. Consult your own attorney.
Copyright 2009 Elizabeth T Russell

Eight Tips For Website Owners

1. Make sure your domain isn’t somebody else’s trademark. People often think that being the first to register a particular word (or combination of words) as a domain confers unlimited rights to use those words. Not true. If your domain happens to be another company’s trademark (or is confusingly similar to another company’s trademark), that company could force you to cease your use. For this reason, it’s important to “vet” your proposed domain name with a trademark attorney, early on.

2. Use your trademark appropriately on your website. Once you’ve cleared and protected your own trademark, make sure you depict it correctly on your website. This really matters! Using your trademark inappropriately (e.g., using it as a noun instead of an adjective, or using incorrect markings) could cause you to lose your trademark protection. If you maintain the site yourself, make sure you understand the usage rules. If you have staff or contractors maintaining the site, make sure they’re properly trained.

3. Don’t commit copyright infringement. One of your biggest risks for web-related liability is failing to clear licenses for the content on your site. Think about the text, images, music, video, maps…pretty much everything on the site. If you or your employee did not create this material, you almost certainly need licenses. Do not underestimate the importance of obtaining them. Statutory damages for copyright infringement can reach as high as $150,000 per infringement.

4. Understand what contractors own – and what you may not. If your employee created copyrightable material in the course of his/her employment, you own the copyright. The same is not true for material created by contractors, even though you specifically paid the contractor to create the material. Make sure you have properly drafted contracts with your contractors, before they create any copyrightable material for you.

5. Don’t be held liable when others commit copyright infringement. Does your site have a chat room…a forum…a blog? Do you provide others with email accounts or ecommerce opportunities? If your website permits third parties to post material (commonly referred to as “User Generated Content” or “UGC”) and it turns out the UGC is infringing, you’re just as liable for copyright infringement as the user who posted the material. Fortunately, there are steps you can take to protect yourself. The Digital Millennium Copyright Act (DMCA) offers procedures that can provide “safe harbor” in these situations. Consult with your attorney to make sure you comply fully with the DMCA’s requirements Follow the procedures properly, and you may be eligible for safe harbor. Fail to do so, and you’re a potential defendant.

6. Make sure your Terms of Use Agreement is likely to be enforceable. How extensive your Terms of Use Agreement needs to be, depends on what you do with your website. If the site is purely informational, the TOU can be brief. If you engage in ecommerce or provide opportunities for UGC, the TOU should be substantially more detailed. Either way, though, the TOU is a contract between you and the users of your website. And a contract does you no good if it’s not enforceable. Don’t make the mistake of copying a TOU from somebody else’s website and using it as your own. (For one thing, that’s copyright infringement!) It’s not just the words that matter; it’s how the language of the TOU correlates to what you actually do on the site and how you interact with your users. Work with your attorney to make sure your TOU will work for you when you need it.

7. Don’t fall into privacy traps. Trap: If you collect personally identifying information from website users under the age of 13, you must adopt policies and procedures that comply with the federal Children’s Online Privacy Protection Act. Some states also have statutes that regulate online privacy. Trap: You are bound by all representations you make in your privacy policies. Often, carelessly drafted policies make representations that are difficult, if not impossible, to uphold. One very common error is stating, “We will never share your information with anyone, ever.”

8. Be afraid of online contests. Never sponsor an online contest without first consulting your attorney. And be prepared for the attorney to tell you things you don’t want to hear. Online contests create a minefield of potential liability. Doing it right is going to mean a substantial investment of time and resources.


This post is not legal advice. Consult your own attorney.
Copyright 2009 Elizabeth T Russell

Copyright Office Fees Change on August 1

Many Copyright Office fees will be changing on August 1, 2009.

The fee for online registration of a basic claim through the electronic Copyright Office remains the same at $35.

Registration of a basic claim on Form CO will now be $50, while registration of a basic claim on paper forms will be $65.

A complete fee schedule and further information appears here.

Copyright: The Importance of "Publication"

Most people understand that registration with the Copyright Office is not required in order to “obtain” a copyright. Copyright vests automatically, the moment you fix copyrightable material in a “tangible medium of expression.” Still, there are several important reasons for choosing to register your work:

• A registration creates a public record of your copyright claim in the work.
• You cannot file an infringement suit in court unless you have registered the work.
• If you register within five years of the work’s first “publication,” the registration constitutes prima facie evidence, in court, of the validity of your copyright and the facts stated in your certificate. (Prima facie means you don’t have to submit any other evidence to prove the point, unless the other side shows you’re wrong.)
• If you register within three months after the work’s first “publication,” you can be eligible for statutory damages and attorney fees in an infringement suit
• Registration allows you to record your copyright with the United States Customs Service, to protect against the importation of infringing copies of your work. (For more information about this issue, click here.)

So registration is important. If you don't understand the concept of "publication," however, you can compromise the effectiveness -- and maybe even the validity -- of your copyright registration.

What do you think “publication” means? Most people think literally, believing it refers to traditional print publication – as in a book or a magazine, or online. They figure, if the work didn’t appear in one of those media, it was never “published.”

Not so.

Section 101 of the Copyright Law (17 USC §101) is the “definitions” section of the code. Here’s how section 101 defines the term, “publication” (the emphasis is mine):

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

Section 101 also defines copies and phonorecords:

• “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
• “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

So basically it comes down to this. Your copyrightable work is embodied in a material object (e.g., a canvas; a piece of paper). If that material object (and/or additional "copies" of work) changes hands: your work has been "published." If you simply display or perform your work but material copies of it do not change hands, your work has not been published.

Here are some additional reasons why it's important to understand about "publication."

• A work’s status as “published” or “unpublished” can affect the court’s analysis in determining whether another person’s use of your work was or was not “fair use."
• “Published” or “unpublished” is the determining factor in certain cases involving library exemptions and protection for authors of other nationalities; it also affects whether you need to deposit your work with the Library of Congress.
• Certain types of "collection" registrations (i.e., registering multiple works with a single application and a single fee) are available for published works; other types -- with different rules -- are available for unpublished works. If you don't know the difference, you might end up with an invalid registration.

Facebook Danger For Trademark Owners

Trademark owners: take action immediately, to prevent others from registering your mark as a Facebook username.

As of 12:01am EDT on Saturday, June 13, 2009, Facebook users will be able to select usernames for their accounts (for example: brussell instead of Beth Russell). Information about the new policy appears on Facebook's blog.

What if your trademark is Nike and my teenage son (or, worse, a competitor like Reebok) registers Nike as a Facebook username? Without arguing the legal merits as to whether this is or is not actionable (and depending on the facts, there are good arguments on both sides of the issue) -- the reality is you're going to be embroiled in some kind of a dispute, quickly. And as soon as that happens -- whether you're legally right or wrong -- you lose. You lose time and money and, possibly, valuable goodwill in your mark.

There are steps you can take to prevent this.

Facebook has a form specifically for trademark owners who wish to prevent the registration of their marks as Facebook usernames. Note: the form requires a registration number, which suggests that Facebook may only be extending protection to the unauthorized use of Federally registered marks. (Yet another good reason to pursue Federal registration!) It's unclear whether that is their official policy; their FAQs do not address the issue.

However. In the event someone registers your mark as a username and you claim state or use-based "common law" rights but you do not hold a Federal registration, consider using Facebook's "Notice of Intellectual Property Infringement (Non-Copyright)" Form.

If you would like information about pursuing Federal trademark registration, please contact Russell Law.

Understanding Lawyers

The key to any good relationship is understanding where the other person is coming from: what realities does the other person have to face, that you might not have thought about?

Russell Law has posted an essay on what might seem like an impossible task, but it's worth a shot: Understanding Lawyers.