The business attorney's guide to opyright law: as copyright interests grow increasingly valuable, businesses that fail to protect their creative works - or be mindful of the issues affecting their rights - run high legal risks. You can provide a key service to your business clients if you understand copyright basics

Illinois Bar Journal, Jan, 2009 by J. Joseph McCoy

In practice, a limited publication occurs when a work is distributed to a small group of people for commentary or criticism; (51) to necessary parties in a business transaction, such as subcontractors, lending institutions, and building authorities; (52) to the news media for the purpose of reporting a contemporary newsworthy event; (53) or to court representatives for the purpose of offering documents into evidence. (54) If your clients distribute their copyrighted works in this manner in their ordinary course of business, you should carefully monitor the distribution to insure that it remains a limited publication.

Copyright notice. Copyright notice must include three elements: (1) the symbol [c] or the word "copyright;" (2) the year of first publication of the work; and (3) the name of the owner of the copyright, or an abbreviation by which the owner is recognized. (55) For instance, "ACME Company [c] 2008" is proper notice.

Notice of an owner's copyright in a particular work is no longer required under federal law. (56) Nonetheless, providing notice on published copies of a work is a sensible business practice for at least two reasons.

First, it informs all interested parties, including employees, business partners, and the public at large, that the work is protected by copyright and that any reproduction or distribution of the work is prohibited. Second, in the event that a work is infringed and a lawsuit is filed, little weight will be given to an "innocent infringement" defense. (57)

Benefits of copyright registration

Although copyright protection exists without a federal registration, there are a number of reasons, and significant benefits, for the copyright owner to register the work, and to do so immediately after it is created.

The first reason is that a copyright registration is required to bring an infringement lawsuit. A copyright may be registered at any time after the work is created. However, if the copyright owner waits to register the work until after an infringement occurs, the owner may be forced to pay a much higher fee to expedite the registration so that the lawsuit can be filed. (58) Moreover, whether or not the copyright owner ever actually intends to bring an infringement suit, a federal registration attached to a cease and desist letter can prove an effective tool against an infringer.

The second reason to obtain a copyright registration is that it entitles the copyright owner to receive statutory damages, legal costs, and attorneys' fees in an infringement suit. To be eligible to receive these remedies, a copyright owner must file for registration prior to an infringement taking place or within three months from the publication date of the work. (59) Statutory damages can be as great as $150,000 per work if an infringement is committed "willfully." (60)

Obviously, this is a significant benefit of timely registration. If registration is not obtained until after the infringing activity has taken place, and more than three months have passed since the work was published, the copyright owner must prove, and then settle for, actual damages and profits. In most cases, proving actual damages is very difficult and profits of an infringer are small. Further, costs and attorneys' fees in a copyright infringement action often become very expensive.