Overview on Copyright Laws

(Although this article attempts to provide a brief introduction to copyright law for sign manufacturers and designers, specific rights and requirements vary according to individual circumstances. Therefore, legal counsel should be consulted in these matters.)

Copyright law in the US has its roots in the Constitution itself, which specifically grants Congress the power "to promote the Progress of Science and useful Arts" by protecting the exclusive rights of "Authors and Inventors" to their "Writings and Discoveries."

In the Constitution, "writings" has been interpreted broadly by courts to mean the tangible expression of an idea. Therefore, a copyright may extend to the technical drawings, sketches or other renderings commonly used in the design and manufacture of signage.

The owner of a copyright has the exclusive right to:

Reproduce

Display

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Prepare derivative works of, or

Distribute copies of

the protected work. Although basic copyright protection arises automatically upon a work’s creation in tangible form, an owner can take several steps to strengthen the ability to later enforce those rights. Therefore, if your business would benefit from being able to prohibit the unauthorized reproduction, display, etc. of its technical drawings and renderings, consider taking the protective actions that follow.

First, a copyright notice should be prominently displayed on the work in a manner that will provide reasonable notice of a copyright claim. The notice should contain the following:

Either the copyright symbol ©, the word "Copyright" or the abbreviation "Copr,"
The year of first publication,and
The name of the owner.

Although such a notice is no longer necessary under US law to establish a copyright, it will serve to defeat an "innocent infringer" defense, which, if successful, would severely limit the relief available to an aggrieved copyright owner.

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Secondly, copyright owners should maximize their protection by registering their work. This not only establishes a public record of the copyright, it’s a prerequisite to bringing an infringement action. Registration can be pursued at any time, but the sooner it’s done, the greater its advantages.

A registration made within five years of first publication creates a presumption of the copyright’s validity. Here, the word "publication" is critical. It’s defined as "the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease or lending. The offering to distribute copies . . . to a group of persons for purposes of further distribution . . . or public display constitutes publication."

More importantly, if registration is made within three months of publication, or prior to the alleged infringement, then both statutory damages and attorneys’ fees are available to the copyright owner in an infringement action. Statutory damages can total up to $20,000 per infringing occurrence, or up to $100,000 per occurrence if the infringement is "willful."

If registration is not made within the three-month or pre-infringement window, then the copyright owner is left to a remedy of actual damages and recovery of any profits accruing to the infringer by virtue of the infringement. Such damages are characteristically difficult to prove and, therefore, the availability of statutory damages is a significant advantage to the copyright owner. The possibility of recovering attorneys’ fees by the aggrieved party in the successful prosecution of a copyright-infringement claim is another powerful weapon for the victimized party.

Registration is fairly simple. Three things must be forwarded to the Copyright Office in the same envelope:

Properly completed application
$20 non-refundable filing fee for each application, and
Non-refundable deposit of the work.

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The requirement for "deposit of the work" varies, depending on the nature of the work and whether or not it’s published. For published technical drawings, the required deposit is generally two copies of the drawing; for unpublished drawings, generally one copy. More detailed information on the required deposit for works of the visual arts is available in Circular 40a, which is published by the Copyright Office.

The effective date of registration is the date on which the Copyright Office has received all three of the required elements in acceptable form. Because the Copyright Office does not acknowledge initial receipt of applications — and the date of receipt is significant in establishing timely registration — such applications should always be sent by certified mail. Once an application is complete, it should be forwarded (in one package as specifically prescribed by the Copyright Office) to:

Copyright Office
Library of Congress
Washington, DC 20559-6000

The Copyright Office has different application forms for different types of work. For technical drawings or other renderings of sign designs, application should be made on Form VA (Visual Arts). The Copyright Office publishes helpful "Circulars" that provide information on copyright law and registration procedures. Circulars 1 ("Copyright Basics"), 40 ("Copyright Registration for Works of the Visual Arts") and 40a ("Deposit Requirements in Visual Arts Material") may be particularly helpful.

Both the application and the Circulars may be ordered through an automated telephone service at the Copyright Office by calling (202) 707-9100. For specific questions or other requests for information from the Copyright Office, call (202) 707-3000. Finally, the Copyright Office provides online access to much valuable information, including the full text of all of the informational circulars, through its home page at http://lcweb.loc.gov/copyright.

W. Michael Walker and Janet Singletary Thomas are with Little, Parsley & Cluverius, P.C., Richmond, VA.