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What does Common Law copyright protection give me exactly?

From my research, all I've found is that if I create a work, it is automatically protected by common law copyright, and that if I register the copyright, I get additional protections like the ability to sue in a federal court.

So what protections do I get with Common Law copyright in the first place? Suing in a state court?

Is the only right that it grants me, the right to use the copyright symbol, which deters others from copying my work? But if they actually copy my work, then I can't go after them?

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There's no "common law copyright" in the US. There's common law trademark, but copyrights and trademarks are different things. All copyright is based on federal copyright statutes, and an unregistered copyright is just called an unregistered copyright. What an unregistered copyright gives you is almost the same thing as a registered copyright: the exclusive right to exercise various rights (reproduction, distribution, public performance/display, etc.) Registration is required before you can actually file an infringement lawsuit, but it's OK if you only registered it after learning about the infringement.

The main reason to register the work early is that you might be able to collect higher damages if it was registered before the infringement. If the work was unregistered when the infringement happened, you can only collect actual damages. If it was already registered, you can instead opt to collect statutory damages. Statutory damages don't require you to show actual loss; instead, the court awards between $750 and $30,000 per work based on what it considers fair. The lower limit can go down to $200 if the infringer had no reason to think they were infringing, and the upper limit can go up to $150,000 if the infringement was willful. You can also collect attorney's fees if it was already registered.

In the comments, the question was raised of whether someone else might be able to register the copyright for your work before you and what would happen then. When I say "registration is required before filing a lawsuit," the requirement is that you submit the registration paperwork properly, pay the fee, and wait for the Copyright Office to act on the application. If they accept the registration, you're all set. Even if they refuse, though, you can still file an infringement claim -- you just have to also serve the head of the Copyright Office, who has the option of jumping into the case to argue about whether the work could legally be registered. You can also sue the Copyright Office to get judicial review of a denial under the Administrative Procedure Act (refusal still lets you file infringement lawsuits, but you can't get statutory damages or attorney's fees against an infringer unless the Copyright Office actually accepted the registration).

  • Searching for "common law copyright" (in quotes) yields about 75k results. Is that terminology not technically correct then? I've seen it pop up all over the place – pushkin Jul 9 '18 at 17:07
  • My main concern is that if I don't register the copyright, someone could take it and register it themselves. It sounds like based on what you said that they would technically be infringing on my copyright if they did that, but I wouldn't be able to do anything about it (re: sue) until I registered my work. If they register it, and I find out, I imagine there's some kind of process for invalidating their copyright? Is that correct? – pushkin Jul 9 '18 at 17:09
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    @pushkin have a look at the Wikipedia article on common-law copyright. You'll see that it does exist, but it has very little applicability in the US. For example, sound recordings made before 1972 are protected by common-law copyright in New York, but that protection is very limited. For other kinds of works, federal pre-emption began in 1978. I suspect that many people are using the term incorrectly, though, to mean "unregistered copyright," as posited in this answer. Perhaps the use arises in analogy to "common-law marriage." – phoog Jul 9 '18 at 18:34
  • @phoog Do you or cpast know the answer to my second comment? If I don't register copyright, could someone else take the work and register it themselves and screw me over? Thanks – pushkin Jul 10 '18 at 15:04
  • @pushkin no, nobody can do that, at least not legally. Only the copyright owner can register the copyright. When you create a work, you automatically own the copyright. Another person can only register the work (legally) if you assign the copyright to that person. If another person registers the work fraudulently, however, you might have to go to court to assert your rights as the true creator of the work. – phoog Jul 10 '18 at 15:09
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Prior to the US 1976 copyright act (which took effect in 1978), US Federal copyright did not extend to unpublished work or to work published without a copyright notice. However, such work was in many cases protected under various state laws collectively referred to as "common-law copyright". This was a misnomer even then I believe, but a very common one. The rights granted under it were significantly less than Federal copyright protection offered, but some protection there was. But for anything written since 1978, the federal statute offers protection from the moment of writing. The old concept would now apply only to work created before 1978, and never published.

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