COVID-19 Extensions to Protect Copyright Owners: Maximizing Economic Remedies in a Period of Uncertainty

The US Copyright Office has exercised its authority under the CARES Act in an attempt to blunt the adverse effects of the COVID-19 pandemic on visual artists, musicians, and other content creators—along with the companies that employ them—by seeking to protect revenue streams affected by stay-at-home orders. Specifically, the Copyright Office has temporarily extended certain deadlines for those who cannot access physical materials or mail services. Creators should take advantage of the new procedure in order to help secure continued revenue in an uncertain economic climate where online fraud and misappropriation continue unabated.

Statutory damages

The Copyright Act is one of a handful of federal statutes that provides for statutory damages, ranging between $750 and $30,000 per work infringed, or up to $150,000 per work in cases of willful infringement. (The Act also allows for actual damages, although those often are difficult or disproportionately expensive to prove.) A federal copyright registration is not necessary to claim copyright ownership in original works. But registration of a work within three months of its first publication is required to sue for infringement and recover statutory damages.  

The three-month period is calculated from the date of first publication to the “effective date” of registration. The “effective date” is the date the Copyright Office receives the application to register the work, along with the filing fee, and the “deposit” material, or a copy of the work. Typically, an applicant will submit the deposit material “virtually,” i.e., online. But the Copyright Office requires physical materials in some cases, so applicants need to arrange for delivery of those to the Copyright Office.

Under the new allowance, an applicant may now upload a statement certifying under penalty of perjury that he was unable to submit a physical deposit and would have done so, but for the pandemic. The application requires supporting evidence, such as a sworn statement that the applicant is subject to a stay-at-home order or was unable to access the required physical materials. The three-month window would then be tolled for at least 60 days, or until the “date the disruption has ended.” Applicants have 30 additional days beyond the end of the disruption to avail themselves of this protection. Applicants who did not have access to a computer or the internet during the pandemic will be able to submit statements after the end of the disruption. Finally, in the case of urgent pending litigation or other good cause, applications to register can be expedited via “special handling.”

Details on these special handling procedures can be found here. And additional general information pertaining to these temporary allowances can be viewed on the COVID-19 section of the Copyright Office website.

Reclamation and termination rights

 Another COVID-19 related allowance pertains to the reclamation and termination of copyright interests. In certain circumstances where an author previously transferred rights to another party, the author can reclaim those rights, or terminate the other party’s rights, within a specific five-year time window. These termination rights are particularly valuable to creators who may need the royalty stream from their published works, especially now.

Before terminating another’s rights, an author must serve the other party with notice of termination no later than two years and no earlier than 10 years before the date of intended termination. For example, if a songwriter has until 2022 to terminate the rights assigned to a publisher, she must serve notice to the publisher in 2020. The notice of termination must also be recorded with the Copyright Office before termination.

Under the new guidance, where (1) the five-year termination window is closing or (2) the deadline to record the termination notice with the Copyright Office is imminent, the Copyright Office will provide authors relief similar to that pertaining to the submission of deposit material. Specifically, authors must take the requisite action within 30 days after the “disruption” ends. They also must file a statement and supporting evidence, akin to that required in connection with the submission of deposit material, explaining that the delay was due to COVID-19.

Content creators and copyright owners should remain vigilant during the COVID-19 crisis and take all proper precautions to secure rights, and protect their revenue stream, especially in these uncertain times.