May It Please the Mozzers,

Legal Monday is here again. This week's post is part practical guide and part cybernag. Remember the post I wrote encouraging you to register your copyright back in December 2007? I bet you haven't done it yet. Am I right?  I thought so.

Today, I'm breaking down the registration process even further by providing some sample registration forms and discussing strategies for how to register your content. My hope is that this will inspire you to register your content by showing you how easy it really is.

I nag because I care.

If you haven't registered your online content, then you cannot take advantage of special statutory provisions of U.S. copyright law. You will not get your attorneys' fees paid and you cannot get statutory (i.e., presumptive monetary) damages. If you want to know more about how the U.S. law favors registration and why it's important to register your copyright even if you can't see yourself ever filing a copyright lawsuit, please read my prior post on registration.

When discussing registration of your online works, this article assumes that the content on your website qualifies for copyright protection. Whether something is eligible for copyright is beyond the scope of this article. But if you have questions, consult my prior posts, the U.S. Copyright Office, and Stanford University's Copyright Page.

Important Legal Disclaimer

This is the part where I have to remind everyone that I cannot give specific legal advice and this post should not be construed as such. This article provides general information about the law. Because laws change and everyone's situation is different, you should always consult a qualified attorney if you have a question about copyright registration.

Alright. Let's get started.

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I'm going to divide up the registration process into three parts because each application should include three things: (1) The Completed Application; (2) A Sample or Copy of the Work; and (3) the fee.


Applications to register copyright are actually very short and pretty intuitive. Regardless, many people break out into a cold sweat at the thought of completing a copyright application. I have a feeling the paper part is what holds most people back. Because "seeing is believing," I am sharing with you the copyright applications I have created to get SEOmoz up to date on its copyright registration.

What the Schmee am I registering here?! Do I register my whole site? A Single URL? My entire blog? A single post at a time?

There are several different ways to register your online content. It's up to you. You can do the whole website or just a page at a time. The strategy you take should depend on the frequency with which your content changes, the value of the content, and the cost of registration.

1. Static Content vs. Variable Content

In determining what content to register and how to go about it, it is useful to distinguish static content from variable content. "Static content" is content that you don't change or update very frequently. Examples of static content include an article about current events, your product, or your competitor's product. Some websites are composed primarily of static material.

Other sites change frequently. For example, a site hosting a Wordpress blog changes every time someone puts up a new post.

Most commercial websites are made up of static and variable components (e.g., larger articles or stories that don't change, and a blog that changes frequently). For example, SEOmoz.org contains static content in the form of its guides and articles (e.g., "The Professional's Keyword Research Guide") and variable content (e.g., "YOUmoz" and "The Daily SEO Blog.")

Note: Blogs can be thought of as both static and variable. In other words, each individual post probably doesn't change very much, and is therefore static. On the other hand, the blog as a whole is extremely variable, with new content being added regularly. Thus, you have a choice of registering only individual posts, or thinking of the blog as an organic whole that will require regular updates. Some people may choose to only register particularly valuable blog posts on a case by case basis. Other people will register the blog as a whole and re-register updates to it on a regular basis.  It depends on the amount of original content on your blog and the content's value.

Let's look at two specific examples. First, we'll look at registering static content, such as an article. Next, we'll look at variable content, such as a blog.

1. Static Content

Static content is simple to register because it's a one time deal. You just complete the appropriate application and send in the copies and your payment. Believe me, it's not as scary and time consuming as it sounds.

At SEOmoz, we register our professional SEO guides and articles on an individual, case-by-case basis. Individual articles are easy to register because unlike a blog, you don’t add content every few days. At most, we revise our articles for accuracy approximately once every couple of years. Thus, most of our articles will only need to be registered once....maybe twice...depending on whether we make substantive revisions at any point.

For example, here is a copy of the registration application SEOmoz will use to copyright its PRO guide “The Professional’s Keyword Research Guide.” Note that the author is SEOmoz, Inc. and it is a "work for hire." It is owned by SEOmoz, Inc. because an employee wrote it. You don't need to be incorporated to register copyright; you can list the names and birth dates of the person or people who authored the content.

Note also that the date of original publication is included on the form. And that the "nature of the work" is quite simply "Primarily text with some graphics."

That's not so bad, is it?

Please note, if you don't think your blog in its entirety has great value, you can elect to protect individual posts by treating them like an independent article or guide. This can get pricey though because each article needs to have its own application and its own fee.

2. Frequently Updated or Variable Content

Now let's look at how to handle frequently updated content. The best example is a blog. At first glance, it might be tempting to try and fit your blog into the rules for publishing serials (magazines, newspapers, journals).  However, most blogs fail to meet these standards.

Instead, the best approach to protect your blog in its entirety is to register "a derivative work" that includes all the new materials every three months. Thus, you don't have to individually register each individual post at $45.00 a pop. Instead, you're registering a new, revised whole every three months with updated information.

If you're just getting started, you register all of your blog posts at once under the title of your blog. Then, three months later, after you've added new posts, you register a derivative work based on the previous registration but incorporating the new content. Let's use SEOmoz's "Daily SEO Blog" as an example.

Here is the form I will submit to the U.S. Copyright Office to register SEOmoz’s Daily SEO Blog for the first time. Although we have blog posts dating back to 2004, SEOmoz has not registered copyright in those posts. (Like many of you, there always seemed to be other things going on. But now it's my job to bring law to this town.) As you can see in this application for registration, I have indicated a publication date of March 2008 even though some of the posts date as far back as 2004. Why? Because March 2008 was the first time that the entire collection of articles were published at the same time. If I were registering each post as an individual work, that would be a different story. After I file this application, we will be 'caught up' until March 28, 2008. Then it's just a matter of making sure we update our registration to protect new, post-March-2008 content.

Every three months, SEOmoz will register copyright for a "derivative work" of the Daily SEO Blog that incorporates the new posts. It is considered a “derivative work” because it is based on or derived from a previously registered work, i.e., the Daily SEO Blog containing works through March 28, 2008. Thus, the application to register the derivative work will state that there are new additions to the previous work, namely, blog posts made from March 28, 2008 to June 28, 2008.

To see an example of what this form may look like, click here. In particular, note the explanation in section 6 which identifies the previously registered material and the new material in the derivative work.

Why is three months the magic number for registering your updated material?

It’s a best to update your frequently variable content every three months because the statute provides only a three-month grace period. Typically, your copyright must be registered prior to infringement in order to benefit from the special statutory damages and attorneys' fees provisions. However, there is a three-month grace period after publication.

Let’s take the following example: Assume you publish on January 1, 2008 and someone steals and republishes your content on February 1st. Let’s also assume you don’t get around to registering until March 1st. Because you registered within three months of first publication, you can take advantage of the special statutory damages provisions even though infringement occurred prior to registration.

However, if you waited until June 2008 to register, you would be outside the scope of the grace period and could not seek the special statutory damages for the February 1st infringement. You could still seek a court order demanding that the infringer cease and desist, but you wouldn't get attorneys fees or statutory damages. Also, you could still seek statutory damages for any infringements occurring after you registered in June.

What is "nature of authorship"?

When completing space 2 of the registration application, use terms that clearly refer to the type of stuff you're seeking to copyright. Examples are “text,” “compilation,” “music,” “artwork,” “photographs,” “audiovisual material” (including sounds) or “sound recording” (when the sounds do not accompany a series of images). Do not use terms that refer to elements that are not protected by copyright or may be ambiguous; for example, “website,” “interface,” “format,” “layout,” “design,” “look of website,” “lettering,” “game,” or “concept.” Also, do not try and describe the subject matter of the content. The US Copyright office doesn't care what your blog is about. It only wants to know if it's primarily text or not.

Most of your online content will probably be text and graphics or artwork. Sometimes it will be music or audiovisual material. In the SEOmoz examples above, the primary "nature of authorship" is text.

Which form should I use?

Because most websites are composed primarily of text, most of you will use the form TX. If your online content is primarily audiovisual (i.e., video), then you will use the form PA. For more information about what form to use, check this out.


Each registration application must include a copy or "deposit" of the work you are registering.

How do I "deposit" my online content?

Websites are not tangible. Thus, it is not obvious how to deposit copies anywhere. Further, the deposit regulations of the Copyright Office do not specifically address websites yet. Until the regulations are amended, the Copyright Office requires you to use one of the following options in order to deposit your two copies:

Option 1: The CD-ROM/Hard Copy Combo. A CD-ROM containing the entire work AND representative portions of the work being registered in hard copy. A hard copy is usually a printout for websites, but sometimes it can be a videotape. It depends on what's on your site. Note: While CDs are okay, zip disks or any other electronic media are not. If the work is really long, you may not have to print out an entire copy of the site. A representative sample may be sufficient.

• If the work is short, deposit the entire work and confirm that it contains the entire copyrightable content. A work is considered short if it is five pages or less of text/artwork, or three minutes or less of music, sounds, or audiovisual material.
• If the work is longer, deposit five representative pages or three representative minutes, including the title, author, and copyright notice, if any. The hard copy should also include the title, author, and copyright notice, if any. A label with the information should be placed on the disk or CD-ROM case. Do not label the CD-ROM itself.

   OR

Option 2: Hard Copy Only. Alternatively, you can send a nondigital, hard copy of the entire work, regardless of length, in the appropriate format for the work being registered, for example, a printout or videotape. No CD-ROM is required with option two.

Exception for content distributed both in print and online formats: If a work is published both online and by the distribution of physical copies in any format, the requirement of the deposit regulations for the copies applies, not the options for online works given above. For example, if a work is published in the form of paper pamphlet and is also transmitted online, the deposit requirement is two copies of the pamphlet.


Don't forget to mail in your $45.00 check with each application. Make the check out to "Register of Copyrights." Generally speaking, the Copyright Office doesn't accept credit cards.

Send the package with your completed application, deposit and fee to:

Library of Congress
Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000

Your registration becomes effective on the day that the Copyright Office receives your application, payment, and copy(ies) in acceptable form.


Can I register my content online?

The U.S. copyright office doesn't allow you to electronically register anything yet. However, it is definitely in the works. As a matter of fact, the electronic copyright office is looking for beta testers!  Most of us, however, need to continue to register our copyright the old-fashioned way: the U.S. mail and hard copies.

UPDATE: Beginning July 1, 2008, the Copyright Office is offering online registration of claims to copyright.

Online registration through the electronic Copyright Office (eCO) is the preferred way to register basic claims for literary works; visual arts works; performing arts works, including motion pictures; sound recordings; and single serials. Advantages of online filing include a lower filing fee; the fastest processing time; online status tracking of your claim; secure payment by credit or debit card, electronic check, or Copyright Office deposit account; and the ability to upload certain categories of deposits directly into eCO as electronic files. To register your claim electronically, go to the Copyright Office website at www.copyright.gov and click on the eCO logo.

Do I need an attorney to register my copyright?

Probably not. It depends on how much your time is worth and the nature of your project. If you're trying to copyright something pretty standard, such as a webpage with all original content, you probably don't need expert advice. But if you're trying to make a compilation of other people's work, or revise some previously copyrighted work, you should probably consult with an attorney.

For further reading on registering your website, take a look at the in Circular 66, "Copyright Registration for Online Works." As always, I look forward to your questions and concerns.

Very truly yours,
Sarah

P.S. I've got a great little series on affiliate marketing coming up next week! If you've got any interesting stories or particular questions from either the merchant or the marketer side, please email me. Thanks!