I recently received a call from a prospective client with a concern that someone was creating a TV show based on a story idea she’d conceived. As many readers know, copyright law protects the expression of the idea, but not the idea itself.[1] Since the “expression” of a TV is often embodied in the Script, Treatment, and/or Bible, my next question was “You have a script, right?” Yes, she said. Shad a script.
I sighed a slight sigh of relief. Ok, there’s hope I thought. Too soon. “You registered the copyright in the script, right?” was my next question. Her response, “of course.”
What came next was disappointing but not entirely surprising. When I probed further, to confirm she had registered with the Library of Congress U.S. Copyright Office (“Copyright Office”), I learned that she’d actually registered her script with the Writers Guild of America (WGA), not the Copyright Office.
While registering your work with the WGA may be useful as evidence in support of a claim of authorship it does not take the place of registering your script with the Copyright Office which is the sole authority with respect to the existence and scope of copyright ownership or rights of written work. Although the law says you already own the Copyright, it is still necessary to register a work.
Under the Copyright Act as amended in 1976 (the ’76 Act), the author (creator) of a work owns the copyright. The ‘76 Act states that copyright protection extends to original works that are fixed in a tangible medium of expression. This wording broadens the scope of federal statutory copyright protection from the previous “publication” standard to a “fixation” standard. No further action is necessary.
Under section 102 of the ’76 Act, copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
Almost any original expression that is fixed in a tangible form is protected as soon as it is expressed. A tangible form includes the electronic medium: a text file created in any word-processing software program is protected as soon as the file is saved to disk.
Although no longer necessary, notice on copyrighted material avoids any uncertainty that it is copyrighted. The four elements of Notice are the copyright symbol, the term “Copyright,” the year of copyright, the name of the copyright holder, and the phrase “All Rights Reserved.”
For example:
Copyright (c) 2022 David M. Adler, Esq. All Rights Reserved
However, items like Ideas, Facts, Titles, Names, Short phrases, and Blank forms are not eligible for copyright protection. Also duration of the protection afforded by copyright Duration of protection lasts depends in large part on when the work in question was created. Whether the work was created before or after January 1, 1978 could have a substantial effect on the life-span of the copyright.
Despite the successful streamlining and efficiency of rights creation and enforcement under the ’76 Act, some challenges and inconsistencies remained. Most noticeably, there had been split in the federal courts over the minimum requirements for court jurisdiction: a registration certificate or merely a pending application. Some courts required the certificate to litigate, some courts only required proof that an application had been filed.
In 2019, the US Supreme Court ruled that in order for a copyright owner to enforce its rights against infringers, the copyright owner must have a registration certificate for the works that are being infringed.
In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___ (2019)[2], decided March 4, 2019, the US Supreme Court resolved this split among courts around the country by holding that the mere filing of a copyright application is not sufficient to allow a copyright owner to file suit – actual approval of a copyright application by the United States Copyright Office is required before suit can be filed.
Approval comes only in the form of a Registration Certificate.
While it is true that the Copyright Act says one owns the copyright in a work when it is fixed, it is no longer true that one can ignore the registration requirements. Yes, one does not have to do anything formal to own a copyright in a work one creates. However, one cannot enforce those rights without the registration certificate in hand. For all practical purposes, there is no reason not to register the copyright in any literary work you create. The fees are relatively low ($65.00) and completing/filing the form can be done electronically.
A word to the wise, like all areas of Intellectual Property, there are nuances that are easily overlooked by the uninitiated. You should always consult with an experienced copyright lawyer when evaluating any individual situation.
Don’t make this simple mistake. Always register Scripts, Bibles, Treatments, notes from “workshops,” or any other creative materials, with the U.S. Copyright Office because you cannot enforce your copyright rights without that registration. More information can be found here: https://www.copyright.gov/registration/performing-arts/
[1] SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1279 (9th Cir.2013).
[2] https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf
