You’ve heard and perhaps repeated to others that copyright is automatic. We here at RightsClick always remind people that while that is technically true, registration with the Copyright Office is required to be able to enforce your rights. But, like Alice stepping through the looking glass, there is a whole different world if your work was published before 1978.
Congress completely rewrote U.S. copyright law in the ‘70s and the new law, the 1976 Copyright Act, took effect on January 1, 1978. This is still the framework for American copyright today. Before that, under the 1909 Act, the rules were very different. Then, copyright was not automatic. Federal copyright protection did not begin until a work was published and there were all sorts of rules, including a requirement for proper copyright notice (the famous ©, the author’s name and the date of publication). If ANY of these requirements were missed, ALL FEDERAL COPYRIGHT PROTECTION WAS LOST FOREVER. Copyright rules before 1978 were harsh and unforgiving. Starting with the ‘76 Act, Congress eventually got rid of those rules. But still today the regulations to register a work published before 1978 harken back to the bad ol’ days.
The rest of this blog discusses U.S. works that were first published between 1964 and 1977. Works published before or after that time (or never published) have other sets of rules.
Works published during the 1964-77 window are commonly still protected today and can be registered with the Copyright Office. Back then, copyright had two terms of protection: an initial 28 years and a “renewal” term of another 28 years. That renewal term was extended a couple of times, which is why those works may still be protected. The special form the Copyright Office requires to register these works is Form RE, short for renewal.
The work WAS registered in its initial term of copyright
Even if the work was registered with the Copyright Office prior to 1978, you should still register it now. Why? Renewal registration will establish who is the copyright owner of the renewal term rights. You will need to use Copyright Office Form RE which, alas, the Copyright Office does not accept online. You need to print the form, fill it out, and mail it to the Copyright Office along with a check for the fee (currently $125), and a copy of the work.
The work was NOT registered in its initial term of copyright
If the work has never been registered with the Copyright Office, your ability to enforce your rights is extremely limited – you can’t even file a law suit unless/until the work is registered. But when you do register, you will also gain access to several important enforcement tools, including statutory damages.
In order to apply for registration, you will need TWO forms: Form RE and Form RE/Addendum. Along with both completed forms, you will need to mail to the Copyright Office a check for the fees ($125 for Form RE and $100 for Form RE-Addendum, for a total of $225), and a copy of the work.
You are on notice!
There is one more thing you need to know. Any work published in the United States before March 1, 1989 was required to be published with proper copyright notice (e.g., © Jane Doe 1975). A work that was published without this notice lost its copyright protection. So, the Copyright Office requires that the copy of the work you send them show that it was published with the proper notice. Keep in mind that a work published as part of a larger work, such as a photo included in a magazine, was protected if the magazine had proper notice on the cover. If that was the case, make sure you include a copy of the cover page so they can see the notice. If you do not demonstrate the work was published with the required notice, your registration is likely to be denied and the fees are NOT refundable.
We wish it were simpler and less expensive to register works published between 1964-1977, but the Copyright Office rules are not flexible. And because the application process remains entirely paper-based, there is not much RightsClick can do to make it any easier. Nonetheless, if you have valuable works from that time period, it is probably worth it to get this registration done.
