What does copyright “protection” mean if I don’t have a work registered and therefore cannot file a lawsuit?
The term “copyright protection” is misleading as it implies that a defensive shield has been installed around your work. The reality is that a copyright—which you get automatically—gives you offensive rights (what author David Pressman calls a “hunting license”). Even without a registration you can pursue infringers, send a cease and desist letter or enter into a settlement. You can also sell your copyright, license it or bequeath it without a registration. But if you want to file a lawsuit in federal court, you must register, a process that costs under $60 if you’re not in a hurry (or over $800 if you are). As a preventative formality, however, and because it provides benefits, many copyright owners register their work when it is first published.
Copyright vs. patent. One appealing feature of copyrights is that with a copyright you can sue people for infringements that occur before registration. Because patent rights are not automatic (you get rights when your application is approved), you can only sue for patent infringements that occur after registration. (Note, there is a procedure for chasing patent infringements that occur 18 months after a patent application is filed.)
During my graduate research in the mid 1990s. I interviewed individuals that were appropriate and that agreed to participate in my study. I have signed and dated permissions forms that explicitly inform the participant that their recorded interview could end up in a published journal or book. Is there an expiration date on the permission they granted?
Unless your agreement provides an expiration date (“This agreement terminates on March 2, 2017”), the permission is still valid for the purposes stated. Contract provisions may also provide a right to terminate at will or under certain circumstances (often, a set amount of notice is required).
Other reasons your agreement may have terminated. Our contracts book explains other reasons that agreements terminate:
- Both parties have fully performed. Many contracts, particularly oral agreements, end when everybody’s done what they’re supposed to do. For example, you paid for the vintage pink mohair sweater at Etsy and the seller has delivered it.
- One party has committed a material breach. If one party breaches, the other party can say, “That’s it, we’re done,” and terminate.
- Court-ordered termination. Courts have the right to terminate an agreement if there was a breach, the contract was void, or the contract violates the law or public policy.
- Mutual termination. The parties to a contract are always free to mutually terminate a contract.
If none of these apply to you, your agreement is still enforceable. For more on drafting permissions, check out my book, Getting Permission.