The U.S. Patent Trademark Office (“PTO”) implemented an online trademark application filing system years ago. But it took the U.S. Copyright Office until last July to develop and implement an online copyright application system. That was the good news. But while the new Copyright Office system was supposed to make things simpler and quicker, it has had the exact opposite effect. Instead of taking 6 to 8 months for the Copyright Office to process a copyright application and issue a copyright registration certificate, it is now taking upwards of 18 months – three times as long as it used to. Here is an interesting article about the problem.
There are, however, two bones we have to pick with the Washington Post article. First, the article implies that the copyright owner shouldn’t perform or display their work until the copyright registration is officially registered with the Copyright Office. We think that is an overly restrictive approach. Why? Because once the copyright registration is issued by the Copyright Office, it will be given an effective date of registration retroactive to the date the copyright application was filed. Additionally, you can put the world on notice that you consider your work to be protected by copyright law by placing a proper copyright notice on your work. For example: Copyright 2009 David P. Branfman.
Second, the Washington Post article suggests that the ONLY way to stop someone from copying your work is to file a copyright application. That’s not entirely accurate. What is important to understand is that the copyright owner can not sue someone for copyright infringement until the copyright application for the work in question has been filed. [Some courts require the actual registration certificate in order to maintain a copyright infringement lawsuit, but more and more courts are allowing a lawsuit to be filed as long as the copyright application has at least been filed – even if the registration certificate hasn’t been actually issued at the time the lawsuit is filed. Those courts then require the copyright registration certificate before a copyright infringement case can go to trial].