When To Register Copyrighted Work
Full Question: Donna, a screenwriter, asked: At what point in the creative process do you register a copyrighted work that is continuously being updated or revised, like a screenplay?
Answer: This is a question we get quite frequently, and it is a particularly important consideration for small creators who need to decide how best to allocate their money. Should I pay $35 to register the original version, and another $35 after the rewrite? Should I hold off until after the rewrite and save myself a fee? I started working on a design but never finished it, should I register my sketches?
The answer to almost any legal question is it depends, and this subject is no different. There’s no one-size-fits-all approach. The good news is that your work is protected by copyright the moment you create it, even if you forgo the registration process. When to register your work with the U.S. Copyright Office varies depending on a number of factors, including the nature of the work, how it’s being used, financial resources, and the likelihood of actionable infringement.
Here are some questions you should ask yourself when trying to determine whether and when to register your copyright claim in your creation with the U.S. Copyright Office.
What can I afford?
As entrepreneurs, small creators have to make important decisions about how and where to invest their money. In a day-in-age where infringement is more likely than not, but also where songwriters, for example, are unable to earn the fair market value of their work, deciding how much money to invest in copyright registration can be tough. Sometimes creators have to make the decision to register this work, but not that one, or to register the rewrite, but not the original. The good news is that your work is protected by copyright the moment you create it, even if you forgo the registration process. But if you can afford to register your work, it’s recommended that you do so because registration provides certain additional benefits. A current list of copyright office registration fees is available here. If you have to pick and choose what to register due to budgetary constraints, consider the remaining questions and answers in coming to the best decision for your particular situation.
What is the chance that someone will infringe my work?
It may be a good idea to register each iteration of your work since registration provides greater protection against infringement, but it could also prove to be too costly and unnecessary. An important consideration here is how, and to whom, you disseminate your work. Are you showing your work to a large audience, or keeping it under wraps until you unveil the finished product? Many artists like to show their followers the entire creative process: they discuss their inspiration, show sketches, and update their social media with photos as the work progresses from start to finish. In those cases, it may be prudent to register each version so that in the event of infringement, you’re protected to the full extent of the law. For others who keep their rough drafts and sketches largely private, there may be less of a need to register anything other than the finished product (but remember to consider the other factors discussed as well).
How similar are the different versions?
You may not be able to answer this question until after you’ve completed the final product, but it’s worth asking yourself how much overlap exists between the various versions. Do the characters and plot change from one version to the next, or are the changes just minor details? If you’ve only adjusted minor details, registering the original version could be enough to protect both the original and any subsequent versions. However, if there are substantial changes, registering one version won’t cover those elements that are different in the other version.
What’s my timeline?
You’ve written the first draft of your screenplay, but between editors and rewrites, it could be another year or two before there’s a finished product. With such a large lapse in time, it may be worth it to invest $35 to register original version and another $35 a year or two later to register the finished product (if necessary, see previous question). However, if you’re a graphic designer who draws sketches one week and rolls out a final product the next, you might be better off waiting and registering only the final product (if, as mentioned above, there are no substantial variations between the two).
What type of work is it?
Typically, a creator must submit a separate application for each work, but there are exceptions which allow one application to cover multiple works (which means one application fee!).
If the works are unpublished, provided they meet the necessary requirements (see “Eligibility Requirements” beginning on page 11, section 1106.1 here), they can be registered as a collection with a single application. It’s up to you to make the call as to whether your work is “published.” The definition of “publication” under copyright law 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”
Based on the last sentence in that definition, some people consider blog posts, photographs, etc. that are merely displayed online to be unpublished, and register multiples together as an unpublished collections using one application. But again, it’s up to you, using the definition above, to make that call.
In copyright law, a database is defined as
“a compilation of digital information comprised of data, information, abstracts, images, maps, music, sound recordings, video, other digitized material, or references to a particular subject or subjects … [in which] the content of a database [is] arranged in a systematic manner, and … must be accessed solely by means of an integrated information retrieval program.”
Both the database itself, and updates or revisions to the database that occur within a 3 month period, may be registered via a single application (see “Databases” on page 2 here).
As discussed above, unpublished photographs can be registered together in a single application, but published photographs may also be registered together (see the definition of publication above under Unpublished Works). For more information on how a photographer can register up to 750 published photographs using a single application, click here.
If there are particular questions that we do not address in the FAQs or Copyright Law Explained sections on our website, please send us your question and we will try to respond with a post in our Ask the Alliance series.
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