Creators often wonder how to “get” copyright protection for their creative works. The good news is that copyright law will automatically protect a work if it meets the criteria of being original and fixed in a tangible medium— a creator doesn’t have to do anything else beyond meeting those simple criteria for copyright law protections to apply. Although a creator does not have to register their works with the U.S. Copyright Office, there are multiple benefits to registering, which include being able to sue in federal court and recover statutory damages.
For creators who choose to register, they must complete a registration application and answer various questions about the work(s) being registered. While many are straightforward, some questions can be confusing as they reference sometimes tricky legal concepts. Here are some explanations of a few of those legal questions in copyright law that you’ll come across when filing a registration application, such as the differences between published and unpublished works, the work-made-for-hire concept, and the characteristics of derivative and compilation works.
Published vs. Unpublished
When filling out a registration application, the applicant is asked to provide information about the work’s publication status. The words “published” and “unpublished” have a specific meaning in copyright law, making them different from the more common understanding of what it means to “publish” a work.
Under the Copyright Act, a work is published when:
- the copyright owner distributes or authorizes someone else to distribute copies of the work to the public or;
- the copyright owner offers or authorizes someone else to offer to distribute copies of the work to a group of persons for the purposes of further distributing copies of, publicly performing, or publicly displaying the work.
The key to understanding if a work is published or not is to determine whether the copyright owner allows for the work to be distributed by others. Just publicly performing or publicly displaying a work will not be considered a publication under copyright law. For example, a photograph posted on the creator’s website is publicly displayed, but that itself does not mean that the photograph was published for copyright law purposes. But if the photographer authorizes others to distribute that photograph or for others to distribute copies of that photograph, then it would be considered published. For example, if the creator offers the photograph for sale or license to the public on her website, that would count as being published.
There are also works that are considered a “limited publication,” but this still means that the work is essentially unpublished. Works that have limited publication are works where the copyright owner restricts distribution of copies of the work to a select group with a limited purpose and without the right of anyone in that group to reproduce, distribute, or sell the work. For example, when a writer gives copies of a manuscript to her agent or to a group of fellow writers for feedback, this could be considered a limited publication. So, to be clear a “limited publication” work is actually not published for copyright registration purposes.
Providing the correct answer to this question is not only beneficial for filling out the application, but is also crucial for other reasons like determining whether the work can be registered as part of a group registration and if so, which group registration to complete, what the deposit requirements are, and how long the term of copyright protection would last if the work is a work made for hire. More about the published vs. unpublished distinction is explained further on our Copyright Law Explained page.
Works Made for Hire
The registration application also asks the applicant whether the work being registered is a work made for hire. Usually, the author of the work for copyright ownership purposes is the person who created the work. But when the work is a work made for hire, the author is a third party who is either the (1) employer of the author or (2) a party who specially ordered or commissioned the work (which must be one of nine types of works outlined in the Copyright Act) as a work made for hire under a written agreement.
As explained further in our Copyright Law Explained page on the Works Made For Hire concept, the copyright owner can determine whether the work being registered is a work made for hire by considering various factors related to how the work was created. For example, some of these factors include whether the hiring party provided materials or working spaces, how much control and direction the hiring party exercised over the creation of the work, and whether employee benefits were provided to the creator.
Correctly determining whether a work is a work made for hire is important for many reasons, For example, whether a work is work made for hire will impact the initial copyright owner is and how long the term of copyright protection will last, since works made for hire are protected for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter. Additionally, the work-made-for-hire determination is important for establishing whether the creator of the work has termination rights, since a creator of a work that is a work made for hire does not have the right to terminate licensing or assignment agreements related to that work because they are not the author. More information and explanation about works made for hire can also be found in the U.S. Copyright Office’s Circular.
Derivative Work or Compilation
A section in the registration application asks the applicant to identify what, if any, parts of the work are based on or incorporate preexisting works and what new materials were added to the work. This helps the Copyright Office, courts, and potential licensees or users understand what parts of the registered work the applicant has copyright ownership over when the work is a derivative work or a compilation work.
- A derivative work is a work that is based upon one or more preexisting works where the preexisting work is recast, transformed, or adapted. When registering a derivative work, the applicant is claiming that they are the copyright owner only of the parts of the derivative work that were originally authored. Examples of derivative works include movies based on a novel, an updated version of software code, or a translation of a literary work.
- A compilation work is a work in which separate and independent works are assembled into a collective whole. When registering a compilation work, the applicant is only claiming that they are the copyright owner of the overall work and not the individual works contained inside the compilation. This is because in a compilation work, copyright law protects the original selection, coordination, and arrangement of the individual works, and does not grant the author any rights to the individual works themselves. Examples of compilation works include a photo essay book containing the photographs related to a particular subject, an academic journal with various articles, or an audiovisual work which highlights and shows the most memorable videos in a given year.
When filling out the registration application, the applicant should keep in mind what parts of the work being registered incorporate preexisting materials that have been previously registered, are in the public domain, or previously published. For example, if an applicant is registering a musical composition which incorporates previously registered lyrics, the applicant should list the lyrics as a preexisting material since they are requesting the Copyright Office to register the applicant’s copyright ownership of the musical composition.
Unlike the other legal questions mentioned above, making a mistake on this question doesn’t affect things like the term of copyright protection (for the original material) or registration logistics like deposit requirements. However, making the correct determination when answering this question allows you, the courts, and others who want to use your work better understand the scope of protection for the registered work.
Made a Mistake on the Registration Application? No Need to Fear!
It is understandable that creators can be wary of making mistakes on their registration applications because these legal concepts are sometimes tricky to apply to the circumstances of the creation, the dissemination of the work, or to the qualities of the work itself. Even attorneys and legal experts sometimes have a hard time figuring out the answers.
However, creators need not fear the prospect of making an honest legal or factual mistake on their registration application. That’s because, earlier this year, the U.S. Supreme Court held that an applicant’s legal or factual mistakes on a registration application will not invalidate a registration which was granted by the U.S. Copyright Office.
Though creators can breathe a sigh of relief about making mistakes on their application, we hope that this explanation of some of the trickiest legal questions in copyright law helps creators build their knowledge and confidence as they approach and go through the copyright registration process.
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