Whether you’re an artist, writer, programmer, or social media influencer, understanding your rights under U.S. copyright law may affect how you do your creative work.
Let’s break down the basics.
What Is a Copyright?
A copyright is a right the law gives to creators to control their original creative work.
In the U.S., copyright protects creative works like:
- books
- songs (or specific performances of songs)
- films
- photographs
- paintings
- sculptures
- digital content
- architectural blueprints
- social media posts
- software code and
- computer chip “mask works,”
among many, many other works, regardless of whether they are published. The key is that the work exists in a “tangible form.”
Your copyright gives you, as the creator, the exclusive right to use, reproduce, distribute, and display your creation. These legal rights are intended to protect your work and ensure others can’t use or profit from it without permission.
In the United States, copyrights last for a set period of time, depending on who the creator is:
- If the creator is an independent artist working for themselves, the copyright lasts for as long as the creator is alive, plus seventy (70) years more.
- If the creator is a company, (or really, the employee of a company who is paid to create), the copyright lasts for ninety-five (95) years from the date the work is first published.
Once the copyright expires, the work belongs to the public and can be copied by anyone.
How Do You Get a Copyright?
Good news! A copyright exists as soon as you express your work “in a tangible medium.” In other words, as soon as you get it out of your head and onto paper, clay, canvas, film, PDF, or saved computer code, your copyright exists in what you have created. But … there’s a catch.
What Does It Mean to “Register” Your Copyright and Why Would You Want To?
Let’s say you’ve created a creative work – say, a photograph. You love the work and want to explore possibilities for licensing it for sale when you discover that someone has taken your photo and is selling print of it through an online B2C portal. What can you do?
Well, you can certainly start by tracking down their contact information and asking them to stop. But what if they don’t?
Under U.S. copyright law, you may have to bring a lawsuit. Before you can do that, you have to “register” your copyright.
How Do You Register Your Copyright?
Registering a copyright is a relatively simple process. You must submit an application to the U.S. Copyright Office, along with a sample of the creative work.
Begin by gathering all the necessary information and materials regarding your work:
- Identify the type of work you’re registering. Is it a literary piece, musical composition, visual art, software, or something else?
You need to find and use the required form for the particular type of creative work you are registering. If you pick the wrong one, you likely will be rejected and will need to start the process again. (The Copyright Office has lots of online publications and advice to help you. Another good option is talking to an experienced copyright attorney, particularly if you are registering for the first time.) - To fill out the application, you’ll need to provide a title for your work, the year you created it, the date of publication (if applicable), and identifying information about you and any additional creators or authors.
- Next, you’ll submit your application through the U.S. Copyright Office’s online system, “eCO,” or by mailing a printed form. Along with your application, you must include a nonreturnable copy of the work as a deposit. This can either be a physical copy or a digital file, depending on the work type and submission method.
- Finally, you must pay the filing fee, which varies depending on a number of factors. As of the date of this post, copyright application fees range from as little as $45 for the simplest online application involving only one author to as much as $500 for a complicated application, say one involving the hull of a vessel.
Your application and deposit materials will be examined by an experienced copyright examiner, who will either approve the application, or send you correspondence with an explanation of any problems with the application.
As of March 31, 2025, the Copyright Office reports that electronic applications without correspondence are processed and registrations are made within an average of 1.5 months after the application date, while applications with correspondence are either fixed or abandoned, within an average of 3.3 months. Applications submitted by mail generally take longer.
Assuming that your application is approved, you’ll receive a certificate of registration, confirming your work is officially protected.
Registration creates a public record of ownership; it establishes that you are the rightful owner of the work. Only after you complete this registration are you able to file a lawsuit for infringement to try to stop the unauthorized taking and use of your work.
What Does a Copyright Not Cover?
There are certain types of works and ideas that copyright does not cover. The touchstones for copyrightability are creativity and originality, so works that lack creative expression—or which are not original to the author—are likely to be rejected.
Examples of ineligible works are:
- lists of facts
- lists of telephone numbers
- business forms
- calendars
- height and weight charts or standard tables, and
- a method for how to do something like the ingredients and steps for how to make a chocolate chip cookie.
Titles, names, slogans, and short phrases are also excluded (although they may be eligible for trademark protection).
“Scènes à Faire”
Writers need to remember that copyright protects the particulars of your artistic expression, not a basic plotline for a story or the basic function of a computer program. Copyright is not intended to block artists from taking a basic building block idea and applying their own creativity to it.
This concept is exemplified in the copyright doctrine of “scènes à faire,” which refers to basic plots or story conflicts that lack the originality or creative effort required for protection under copyright law. These elements are considered the necessary building blocks for creativity, and they remain outside the scope of copyright so that they cannot be owned by any one individual. The doctrine ensures that others are free to use foundational elements and promotes innovation and the free flow of ideas.
As an example, compare Shakespeare’s Romeo and Juliet with the modern musical West Side Story by Jerome Robbins, Stephen Sondheim, and Leonard Bernstein, based on the book by Arthur Laurents. Both stories center on forbidden love between young individuals from feuding groups; the similarities are in the general ideas and plot structures rather than specific expressions or creative details. The common narrative elements—the lovers’ tragic fate and the conflict between rival factions—are considered scènes à faire or common tropes that may be inevitable in any story exploring forbidden love and societal divisions.
Thus, while West Side Story may have been inspired by Romeo and Juliet, the modern story introduces original dialogue, settings, and characters and thereby establishes its own distinct creative expression. Doing so means that West Side Story avoids infringement of the Romeo and Juliet copyright, leaving aside the issues of a copyright’s duration, etc. Under U.S. copyright law, foundational ideas remain free to inspire new works while original expression is protected.
Copyrighting AI-Assisted Creations
The extent to which AI-assisted creations are eligible for copyright registration is an emerging field. The law is being written right now by the Copyright Office, courts, and perhaps Congress, about this entire sub-field of creation, and creators who work with AI are not discussed here. This will be the subject of a future post.
Tangibility
Finally, works that have not been fixed in a tangible form—such as improvised speeches or concert performances that were not recorded—cannot be copyrighted. But, in a modern age where everyone has a smartphone, this is less of an issue than it once was. However, smartphone video recordings do raise serious issues regarding who owns the copyrights in such works. Again, this is beyond the scope of this post.
Damages for Copyright Infringement
What are the penalties for copyright infringement?
Unique among intellectual property regimes (and unlike patents, trademarks, and trade secrets), U.S. law sets specific monetary penalties for people who copy registered works.
Called “statutory damages” by lawyers and judges, these are monetary awards that are set by law to compensate the copyright holder without requiring proof of actual damages or lost profits.
Under the U.S. Copyright Act, the amount of statutory damages can range from $750 to $30,000 per infringed work, depending on the circumstances. If the infringement is proven to be willful, the court may increase the damages up to $150,000 per work. On the other hand, if the infringer can demonstrate they were unaware of the infringement, the damages may be reduced to as low as $200 per work.
Statutory damages provide an essential remedy for copyright owners, particularly in cases where calculating actual damages is challenging or impractical, and they serve as a deterrent against unauthorized use of protected works.
Still further, in extreme cases, copyright infringement can be prosecuted as a crime by the federal government.
Enforcing Your Copyright
If someone infringes your registered copyright, you can sue the infringer, either in in federal court or at the U.S. Copyright Claims Board (CCB).
The Copyright Claims Board (CCB), sometimes referred to as the Copyright Small Claims Court, provides a streamlined process for resolving copyright disputes without the need for full federal court proceedings.
Designed to handle claims for damages under $30,000, the CCB is meant to give an accessible option to individuals, small businesses, and independent creators who otherwise might lack the resources to pursue legal action.
Participation in the CCB process is voluntary, with both parties required to agree to the proceedings. Decisions made by the CCB are enforceable but limited to monetary damages, and the process is intended to be quicker and less expensive than traditional litigation. The CCB aims to balance the scales of justice by ensuring that copyright holders have a practical avenue for protecting their rights while also limiting burdens on defendants.
Conclusion
Copyright plays a critical role in fostering creativity and innovation by granting creators legal protection for their work. It tries to protect the right of creators — whether individuals or companies — to benefit from their work and to control how that work is used.
At the same time, copyright law tries to balance the creators’ rights with the public’s access to information, culture, and knowledge, which is essential for social progress.
Creators need to understand and respect how copyright principles can reward them for past work while fostering a healthy, fair, and inspirational environment for the next one.
Lapple Ubell IP Law is an intellectual property law firm based in Irvine, California, dedicated to helping clients protect, manage, and enforce their innovations and creative assets. The firm provides strategic counsel on patents, trademarks, copyrights, and related IP matters for businesses of all sizes.
The author, Matt Lapple, is an experienced intellectual property attorney and a past-president of the Orange County Intellectual Property Law Association. If you have questions please contact Matt at matt@lappleubell.com or 949-756-4889.