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In 2010, I wrote a pair of articles on copyright defense. I wanted to refresh the topic of authorship and copyright, and how as an author you may be able to better defend your creation. This is the first of a series of articles, and will suggest that the author has a responsibility to maintain proof of their authorship of a work.

In the 2000s, there was a lawsuit involving Linux (SCO v. IBM) where SCO asserted an author’s right over software in Linux. The center of the entire matter was whether Linus Torvalds had copied from SCO’s version of UNIX, or whether he himself was an author. As an author, this is where you would find yourself during a copyright infringement: having to prove your authorship.

Under current US Copyright law, a work is protected at time of creation. (17 U.S.C. § 104) An unregistered work has limited, civil protections, largely focused on stopping further infringement (i.e., estoppel). (17 U.S.C. § 502–503) A federally registered work, by contrast, enables monetary damages, legal fees, and potential criminal charges. (17 U.S.C. § 504–506).

A registration with the US Copyright Office is prima facie evidence of valid copyright. (17 U.S.C. § 410–11) This means the courts are to presume the copyright is valid. Now, this presumption is rebuttable if the defendant can undermine the validity of your claim. This means you start from a stronger legal position that the defendant must defeat. By contrast, the author of an unregistered work must prove to the court their legitimate rights. This is an inherently weaker position. The question of authorship is something a jury must determine, so they are who you ultimately have to persuade.

There are a lot of caveats that I’ve bypassed that an author should be aware of, but are out of the scope of this article. The underlying point is this: whether your work is registered or unregistered, you should always be in a position to prove your authorship. Registration helps, but is not absolute.

What About Poor Man’s Copyright? I addressed this in 2010, but the Poor Man’s Copyright is a well-debunked urban legend. Moving on.

Next time, I’ll share what the 9th Circuit says to juries on the question of an author’s copyright, and what I think that means for us as authors.






