Intellectual Property Law
Intellectual Property Law Questions? Ask a Lawyer
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Registering a copyright provides for some benefits when it comes to proving who owns the copyright. Registration made before the end of five years after the date of first publication will constitute prima facie evidence in court that a copyright is valid and that all the facts stated in the certificate of registration are true. SEE 17 USC §410. What this means is that it becomes the defendant’s burden to show that your copyright is invalid. However, registration is not a condition of copyright protection. SEE 17 USC §408(a). The copyright attaches as soon as “original works of authorship” are “fixed in any tangible medium of expression.” SEE 17 USC §102(a). So, at this point registering your copyright will not help much since they registered first; rather what is at stake now is WHO was the first to create the original work. More to come...
Yes, I am sorry, I meant to follow-up sooner.
The primary discussion in most copyright infringement cases is the analysis of whether a defendant’s work copies the constituent elements of the plaintiff’s work that are original. This element requires proof of actual copying of the plaintiff’s work by the defendant. So, as you correctly stated, "copying" involves a factual question of whether the defendant actually used the plaintiff’s work in order to create his own work. This is usually shown by showing that a defendant has access to the plaintiff's work and by showing probative similarities between the two. SO, if you can show that your work was created independently, that is a defense to copyright infringement.
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Current processing times are:
for e-Filing: 6 – 8 months
for Paper Forms: 8 – 10 months
For works that are determined to be copyrightable and that meet all legal and procedural requirements for registration, the effective date of registration is the date the Copyright Office received the completed application, correct payment, and copies of the work being registered in acceptable form.
I am sorry, I do not know the time frame as to when you receive that number; I will opt out and see if another expert can assist you.
If you register electronically with the USPTO it takes 3 months to get your registration.
If you register by filing hard copy it takes 10 months for the USPTO to process.
It takes the USPTO 3 months to process your request for a registration.
But you can publish your design prior to receiving it. You can post on your page the Copyright Notice symbol. Registration is backdated to the application date.
You can see from the "Status Request" page at the USPTO there is no pending number:
Patterns can be copyrighted. There is a lot of activity in copyright litigation over this. Some of the copyrights have been successfully challenged.
Some have not:
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