After all, the USCO form specifically asks the filer when – in what year – his or her work was completed. You could in theory file in 2011 for a 2006-completed work. In that case, the copyright would have existed as of 2006.
Under the U.S. Copyright Act, (which can be found at various locations on the Internet, at 17 United States Code [U.S.C.] Section 101 and following), the author of an original and otherwise-protectable work automatically possesses a copyright in that work as soon as the work is reduced to a “tangible medium of expression”. No later.
The New York choreographer on Manhattan’s West Side improvises a new set of dance steps for her students – fleeting, in the air – but owns no copyright in these movements or their performance or rendition. However, the moment she writes down the original dance steps using a detailed graphic chart, or videotapes herself performing them in her New York studio – perhaps at her entertainment lawyer’s suggestion – she may then have a chance to claim some copyright-protected work. The key, again, is the work’s reduction to a fixed medium. In fact, she may own the copyright in that material without ever interacting with Washington, D.C. – even though her entertainment attorney will tell her that it sure would be a good idea to thereafter mail a filing to D.C. if the original work of authorship is perceived to have any economic or other long-term value.
And this makes sense. Look at it from the perspective of copyright enforcement – from the perspective of the New York entertainment attorney litigator trying to prove or disprove copyright infringement in a court of law downtown at 500 Pearl Street. How difficult would the job be of a federal judge or jury in a U.S. copyright infringement litigation in the Southern or Eastern Districts of New York, or that of a U.S. Copyright Office Examiner in Washington, D.C., if the U.S. Congress allowed all of us to claim copyright in the inchoate and evanescent? The courts in New York and indeed nationwide would be inundated with strike suits and other spurious copyright claims, perhaps more often brought by pro se litigants rather than their entertainment lawyers if any. Therefore, Congress doesn’t let us get away with it. Congress requires reduction to a “tangible medium of expression” as a pre-condition for copyright protection. But no, Congress does not require copyright registration as a pre-condition to copyright ownership itself – rather, copyright registration at or around the time of creation is discretionary with the copyright owner. Congress only requires copyright registration as a pre-condition to filing a lawsuit for copyright infringement – something that your entertainment lawyer litigator won’t miss when reviewing the statute pre-filing of the federal court lawsuit.
Yes, your entertainment attorney will tell you that after-occurring copyright registration of a work does provide certain strategic advantages, relative to unregistered works. Copyright registration notifies those of us in New York, and in California, the U.S., and the rest of the world, at least constructively, that the copyright claimant thinks he or she owns the copyright in that registered work. Practically speaking, copyright registration creates a likelihood that another company including its own entertainment attorney performing a copyright search, will “pick up” (i.e., see, or notice) the previously-registered work, when that company or its entertainment lawyer counsel later conduct a thorough professional (or for that matter even a cursory and informal) ocular copyright search of the public records of the Washington, D.C.-based U.S. Copyright Office. Most film studios and their entertainment attorneys perform thorough copyright searches as a matter of course, for example, before optioning an author’s literary work.
As discussed above, whether you live in New York, Los Angeles, or elsewhere, copyright registration with the U.S. Copyright Office in the Library of Congress in Washington D.C. is also a necessary precursor to your entertainment attorney litigator bringing a copyright infringement litigation in a U.S. federal court. For this reason, in practice, individuals and companies and their entertainment lawyers have been occasionally known to register their copyrights days – or even hours, paying an emergency rush filing fee using a New York-to-D.C. Fed Ex – before they sue for copyright infringement in federal court. Of course, the entertainment lawyer will tell you that it is better to register the work at an earlier stage than that. Filing a copyright infringement litigation predicated upon a USCO copyright registration in turn allows for the entertainment attorney litigator to recover certain types of damages afforded by the U.S. Copyright Act, such as “statutory” damages, and plaintiffs’ attorneys fees. These types of damages would not be availing to the copyright plaintiff if his or her entertainment lawyer sued using a different common law theory. A copyright registration may also work advantages in terms of certain international copyright protections.
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