The modern trend in copyright law has been to relax certain “formalities” that had the unfortunate effect of divesting all too many authors and owners of the ability to enforce their copyrights. Over the past decades, and consistent with international norms, Congress has amended the law to diminish the importance of formal requirements for copyright protection, such as having to publish a work with the proper copyright notice affixed. Any copyright owner who seeks to enforce his or her copyrights in court, however, must still satisfy specific legal requirements. While these requirements, for the most part, are not formalities per se, they all have the potential – much like the formalities of days gone by – to trap unwary copyright owners and preclude any meaningful copyright protection. This article discusses the key legal requirements that a potential plaintiff should consider to ensure that the copyright infringement claim can go forward and be heard on the merits.
As an initial matter, it is essential for any such plaintiff to determine what body of law would govern the dispute. The federal 1976 Copyright Act, codified in Title 17 of the United States Code, applies to works created on or after January 1, 1978, though the Act also contains provisions applicable to pre-1978 works (for example, covering the terms of protection and termination rights for such works). The federal 1909 Copyright Act covers works created and published before January 1, 1978.1 Moreover, while federal law has preempted most state law protections, state law continues to apply to works not within the subject matter of copyright (including unfixed works like improvised performances or extemporaneous speeches2) and sound recordings fixed before February 15, 1972. The rules may differ depending on which law applies, and this article highlights some of the significant differences among the applicable bodies of law.
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