Creative professionals are often told that infringement is not the problem facing a successful creative career, rather the real problem is visibility. Without the work getting “out there,” getting seen and reviewed, an author or creator doesn’t make sales and won’t make a living.
So you work hard for visibility by marketing your work and building an audience. At some point, your persistent efforts will reach critical mass and you start attracting attention for your work. Attention that can translate into revenue.
A Creative Career Grows Organically if You Plan for It
You can never really be sure which of your creations is going to take off and enjoy popular success. You might think the first book in your series is your best work, the better story. Or perhaps you believe in the highly stylized image you spent most of last summer finishing. But it turns out that it’s the third book in the series that has fired your readers’ imaginations and, really, it was that sketch you made at breakfast with your niece that has caught the attention of the internet.
Then, just when you start to get significant sales traction on your book, registrations for your online course, sales of your freshly designed product, or momentum for your art, you see illegal copies pop up on pirate sites with free download buttons, knocked off on Amazon, or incorporated into the work of others who are selling it without your permission.
Maybe you’ve been given credit for your original work. But even if there is attribution for the use of your work (which there rarely is), without revenue flowing to you . . . well, attribution doesn’t pay the rent.
At this point you realize that you need to decide how to begin protecting your work and whether to start the process of enforcing your rights. Part of you says, “Why bother. It’s pointless. Pirates are everywhere. It’s like playing whack-a-mole.” But another part of you says, “No. I’m not going to stand for this. It’s my work. I should be the one who earns the money from it.”
But a course of action just doesn’t seem clear.
This is the frustrating experience of far too many creative entrepreneurs, writers, and artists who have built a following gathering customers, fans, readers, likes, shares, and sales only to have their hard work undermined by copyists who prevent them from making a living from their work.
The fact is, you can and should begin the protection process as part of the creation process before your marketing even starts. Then you will already have the tools in place when it comes time to enforce your rights and control your income streams.
Without a Protection Plan, Enforcing Your Rights Can Be Overwhelming
The problem is you don’t have a plan in place for what to do and how to do it when your work is taken.
Not having a plan to protect your creative work is like investing in a multi-million dollar quarterback and having a Pop Warner offensive line to protect him. Or, if football analogies don’t resonate with you . . . it’s like buying a vintage Aston Martin and not having comprehensive insurance coverage.
At some point, the opposing team’s middle linebacker is going to come through that line and crush your Golden Arm. Or a hail storm is going to burst through the clouds and pummel that car to a dull, pock-marked finish. Investment gone.
Without a plan to protect your work, the value of your art will disappear with the person who takes it.
If It’s Worth Creating, It’s Worth Protecting
Many writers and artists simply don’t know how to develop a protection plan for their work. Others have decided that protection techniques are inefficient or ineffective.
Throwing in the towel on protecting your work makes no sense. It was worth creating, it must be worth protecting. Especially when federal protection is relatively simple (compared to creation of the work itself) and inexpensive. And now with the passage of the CASE Act, enforcement of your rights has become simpler and less expensive.
While there may be conflicting opinions on aggressive enforcement methods, there is little dispute that a federal registration is the primary ingredient for protecting a body of creative work. If you do not have that registration, you cannot have a meaningful protection plan of any sort.
Without that registration, trying to enforce your rights is not just a challenge, it can be impossible.
Build Protection into Your Workflow
Create. Publish. Apply. It’s that simple.
Create your work.
Publish it to your audience. Publish in the copyright sense means to make the work available for sale or further distribution to the public.
Apply for copyright registration. A timely copyright application is one which is submitted within three months of publication of the work. Don’t wait until the last minute. Think of the application as being as important as uploading your book to Kindle, adding a product to your store, or making your images available for sale in the art market. Your work isn't finished until the application is filed.
After you’ve completed the copyright application, you will receive two emails from the Copyright Office — one confirming the completed application and acknowledging receipt of the filing fee (from $45) and one confirming the upload of your deposit copy. Save them all as PDFs until you get the registration certificate. They can be used for enforcement as evidence of registration.
The Benefits of Being Prepared with a Federal Registration
If you have registered your work in a timely manner and somebody copies it illegally, you can sue them and possibly recover your attorneys’ fees and statutory damages (up to $150,000 per infringement). If you’ve planned ahead and registered the copyright as part of your workflow before infringement takes place, you’re more likely to find a lawyer willing to take your case. This is the benefit most lawyers mention when discussing federal registration.
It may be that the idea of bringing and possibly financing a federal lawsuit for copyright infringement is alien to you. (Although now, with the CASE Act, ridiculously expensive federal litigation is not the only option.) The question becomes—if you’re not going to litigate, just how useful is a copyright registration on your work?
In reality, it is hard to know what action you might want to take in the future if your work is infringed and your creative career is threatened. You can’t predict who might take your work, how they might use it, and whether you will want to stop them. This is especially true given the length of a copyright term. Without the registration, you’ve limited your options before you’ve had the chance to make a choice.
A copyright registration is evidence of ownership and originality. It eliminates the need to prove those two elements if you do choose to take an enforcement action.
The ability to enforce and possibly litigate is not the only reason to apply for copyright registration on your work.
Copyright registration improves a creator’s ability to control the reproduction, sale, and licensing of his work. A single piece of creative work can be used to generate multiple income streams. A novel can be published as a book, serialized, licensed as a film or turned into a television series, for example. The rights that separate into those revenue streams are secured by a copyright registration. The Copyright Office can be used as a repository for assignment of those rights and as a means of locating the individual responsible for negotiating those rights for a particular property. The same is true for registrations of visual arts. None of those things has anything to do with litigation and each is a benefit of having a federal copyright registration.
A copyright registration turns intangible intellectual property rights into something tangible—the expression of an idea in your work becomes a piece of paper that serves as a record of ownership. Something that can be put into a safe deposit box to secure an inheritance of those revenue streams under a will. Just like personal property, the intellectual property embodied in a copyright registration can be bequeathed to your heirs.
Registration is Not Just For U.S. Citizens
If you are a citizen or resident of a country that is a signatory to the Berne Convention and you sell your work in the US, then you can register your work with the U.S. Copyright Office and gain the all of the benefits offered by U.S. Copyright law. Also, if your work is first published in the U.S. or in a Berne Convention country regardless of your citizenship, it can be registered with the Copyright Office and benefit from the protections offered by U.S. Copyright law. Simply put, any work that is protected by U.S. Copyright law can be registered with the Copyright Office.
So, let me ask you—doesn’t it make sense to build your creative career on a solid foundation? Take the first step in protecting your work by applying for federal copyright registration.
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