As part of my profession, I often create things that I present to my clients. For example, I may create a floor plan or an interior design drawing. I may create renderings of what a project will look like when completed. I create bills of materials, supplier lists, written specifications, and all sorts of other materials. Every so often, a client may stiff me on a bill. Is there any way that I can do more than just sue for the value of the unpaid bill?
In the course of your work as an “independent contractor” you create a lot of “works” that are incidental to your services. “Works” are what the law calls creative things that may be eligible for copyright protection. Under United States Law (17 U.S.C.A. § 101 et seq.) such works of authorship are automatically protected by copyright for your life, plus 70 years (unless your business is incorporated, in which case they are protected for 95 years.) In any event, federal law allows you to bring a law suit if your works are used in any way without your authorization. That law suit will be heard in federal court, and you can assert any state law claims there, as well, such as for breach of contract.
As you may imagine, bringing an action in federal court is quite a bit more powerful than doing so in your local small claims court (the federal courtrooms, alone, are enough to scare (uh, impress) the most jaded deadbeat.) There is only one catch. In a case in early March of this year, the United States Supreme Court ruled that you must “register” your copyright claims BEFORE you file your law suit (FOURTH ESTATE PUBLIC BENEFIT CORP. v. WALL- STREET.COM, LLC, ET AL.). There are many reasons to register your works in the Copyright Office, including recovery of attorney’s fees, and the availability of “statutory damages” that can run up to $150,000 per infringement.
Registration is very inexpensive (it can be done online for most works for $35 per item) but it takes the government about 10-12 weeks to get you your certificate. If you just have not gotten around to registering and need to have one issue quickly, the Copyright Office can be very accommodating. It has a “special handling” charge of $800 (in addition to that $35) and will try to get you your certificate in five working days!
A few years back, the Doc worked with an architecture firm whose client refused to pay a rather big bill. Fortunately, the contract said that the firm owned its work product and permitted use of it by the client upon payment in full. (Now THAT was a good contract, another important lesson.) By filing copyright claims on the plans for the building, the Doc got the whole law suit into federal court. A magistrate judge actually commented to the lawyers in private that this strategy was very clever, and the law suit settled pretty soon on terms favorable to the architecture firm.
So…the moral of the story is: if you create “works” in the course of your business, you should have a contract that preserves your rights to those works, your should register the copyright in those works early and often, and you will have legal tools at the ready when your clients misbehave. Forewarned is forearmed (although the Doc has been working out and his forearms are as skinny as ever!) Have a “work”? Talk to the attorneys at LW&H. They can help you to get it registered, have a great contract, and bring that federal law suit, should the need arise.
Until next month,
–Lawrence A. Husick, Esq.