You get a copyright in the United States when you create an original work of authorship and fix it in a tangible medium — not when a government office stamps a form. 17 U.S.C. § 102 is the starting point: literary works, music, drama, choreography, pictorial and graphic works, motion pictures, sound recordings, and architectural works (among others) can qualify. Ideas, procedures, systems, and methods of operation do not; copyright protects expression, not the underlying idea.
Registration with the Copyright Office is still the step that makes copyright enforceable in federal court for U.S. works and that unlocks the remedies most infringement cases actually need. This guide walks through what you own under § 106, how registration works under §§ 408, 411, and 412, and how fair use fits. For litigation forum questions, see the practitioner guide on federal copyright jurisdiction.
Key takeaways
- Copyright arises automatically on fixation of original expression under § 102; registration is not required to own the copyright.
- § 106 lists exclusive rights: reproduce, prepare derivatives, distribute, publicly perform, publicly display, and (for sound recordings) publicly perform by digital audio transmission.
- For U.S. works, you generally must obtain registration (or refusal) before suing for infringement — Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC.
- Early registration preserves eligibility for statutory damages and attorney’s fees under § 412.
- Fair use is a statutory defense with four factors; leading cases include Campbell, Harper & Row, and Google v. Oracle.
- © notices are optional for works published after March 1, 1989, but still useful as practical notice.
What copyright protects — and what it does not
17 U.S.C. § 102(a) requires originality and fixation. Originality means independent creation plus a minimal spark of creativity — a low bar, but not zero. Fixation means the work is embodied in a copy or phonorecord sufficiently permanent to be perceived, reproduced, or otherwise communicated for more than a transitory duration.
§ 102(b) is equally important: copyright does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery. That idea/expression distinction is why two cookbooks can describe the same recipe method, why software interfaces raise hard questions, and why raw facts in a directory are not protected even if the compilation’s selection and arrangement might be.
Works made for hire and joint works change who owns the copyright from day one; ownership transfers generally require a signed writing. Those issues decide who registers and who can sue.
Exclusive rights under § 106
17 U.S.C. § 106 gives the copyright owner the exclusive rights to do and to authorize:
- reproduction of the work in copies or phonorecords;
- preparation of derivative works;
- distribution of copies or phonorecords to the public by sale, rental, lease, or lending;
- public performance (for literary, musical, dramatic, and certain other works);
- public display (for literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and certain other works); and
- public performance of sound recordings by means of a digital audio transmission.
Each right can be licensed separately. Online uses often implicate reproduction, distribution, and display at once. First-sale and other limitations narrow some distribution rights after a particular copy is lawfully sold — see Kirtsaeng v. John Wiley & Sons, Inc. on the geographic reach of the first-sale doctrine.
Registration: why and how
17 U.S.C. § 408 authorizes registration of a copyright claim with the Copyright Office. You submit an application, a deposit of the work (or identifying material in some categories), and a fee. The Office examines formalities and copyrightability at a high level; it does not police every infringement question.
The lawsuit prerequisite after Fourth Estate
17 U.S.C. § 411(a) provides that, for United States works, no civil infringement action shall be instituted until preregistration or registration of the copyright claim has been made. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, the Supreme Court held that “registration has been made” when the Register of Copyrights has acted on the application — granted registration or refused it — not merely when the applicant filed. If registration is refused, you may still sue after serving notice on the Register as the statute allows.
Practical consequence: if you expect to need court remedies, file early. Special handling and (for narrow classes) preregistration under § 408(f) exist for time-sensitive situations, but routine electronic registration remains the default path for most authors and small businesses.
Statutory damages and fees: § 412
17 U.S.C. § 412 blocks statutory damages and attorney’s fees for infringements that began before registration (with a three-month grace period after first publication if you register within that window). Actual damages and profits may still be available, but many consumer-scale and small-business cases are economically viable only because of statutory damages. Registering a portfolio on a cadence — software releases, photo shoots, album drops — is a business control, not paperwork theater.
Registration also creates a public record and, when timely, can provide prima facie evidence of validity. Cost awards after infringement judgments have their own limits; Rimini Street, Inc. v. Oracle USA, Inc. addressed which litigation expenses count as “costs” under the Copyright Act.
Fair use in brief
Fair use under 17 U.S.C. § 107 is a defense, not a permission slip you obtain in advance. Courts weigh four factors: purpose and character of the use (including commercial vs. nonprofit and transformative character); nature of the copyrighted work; amount and substantiality of the portion used; and effect on the potential market.
Three linked landmarks frame everyday analysis:
- Harper & Row, Publishers, Inc. v. Nation Enterprises — scooping an unpublished presidential memoir’s heart weighed heavily against fair use.
- Campbell v. Acuff-Rose Music, Inc. — commercial parody can be fair use; transformativeness matters more than a commercial/nonprofit label alone.
- Google LLC v. Oracle America, Inc. — copying declaring code as part of reimplementing a user interface was fair use on those facts, with heavy emphasis on the nature of the work and market effects.
Fair use is fact-intensive. Educational intent helps but does not automatically win; using an entire image or chapter often hurts; and a use that substitutes for the original in the market is especially risky.
Copyright versus trademark and patent
Copyright protects creative expression. Trademarks protect source-identifying brands in commerce. Patents protect inventions that meet Patent Act requirements. A logo may be both a copyrightable graphic work and a trademark; software may involve copyright in code and patents in functional inventions. Pick the regime that matches the asset you are trying to stop others from using.
Step-by-step
- Confirm the work is original expression fixed in a tangible form under § 102.
- Identify the author or owner (individual, joint authors, or work made for hire / assignee).
- Decide on registration timing — ideally before publication or within three months after, and always before you need to sue.
- Prepare the deposit the Office requires for your category (complete copy, identifying material, or group options where available).
- File the application and fee and retain the service request / certificate when issued.
- Use optional © notice (year of first publication, owner name) on published copies.
- License in writing when others need § 106 rights; keep records of exclusive vs. nonexclusive grants.
- Monitor infringement, but remember § 411 and Fourth Estate before filing suit on a U.S. work.
Frequently asked questions
Do I need to register to own a copyright?
No. Ownership arises on fixation of original expression under § 102. Registration is required as a prerequisite to filing an infringement suit for U.S. works under § 411, as construed in Fourth Estate, and it is what preserves statutory damages and fees under § 412.
How long does copyright last?
For most works created on or after January 1, 1978, by an individual author, the term is life of the author plus 70 years. Works made for hire, anonymous, and pseudonymous works generally last 95 years from publication or 120 years from creation, whichever is shorter. Always check the specific term rules for older works.
Can I copyright an idea for an app or business?
No. § 102(b) excludes ideas, methods, and systems. You can copyright the code, text, graphics, and other expression you create — and you may need patent or trade-secret strategies for functional inventions and confidential know-how.
What is the difference between ©, registration, and a lawsuit?
© is optional notice. Registration is the Copyright Office record that enables suit and enhances remedies. A lawsuit for infringement of a U.S. work generally cannot start until the Register has acted on the application. See § 106 for the rights you enforce and the copyright jurisdiction guide for where those suits must be filed.
Is using a short clip or thumbnail fair use?
Maybe, maybe not. Courts apply the four § 107 factors as in Campbell, Harper & Row, and Google v. Oracle. Length alone does not decide the question; purpose, amount relative to the whole, and market harm often dominate.
This guide summarizes U.S. copyright statutes and leading cases for research and orientation. Registration choices and infringement risk are fact-specific.