Copyright protection is an often overlooked component of an intellectual property portfolio. However, it is important to consider pursuing copyright protection in order to provide a more robust intellectual property portfolio. Given the relatively low costs to acquire a copyright registration and the ability to collect statutory damages, pursuing a copyright registration can prove to be a worthwhile expense. Although copyright registration is often a relatively simple process, there is an ongoing split among various circuit courts as to the effectiveness of a pending copyright application for registration versus that of an issued copyright registration. The difference can have important consequences for pursuing a copyright infringement action.

A copyright protects an author’s “original works” once they are fixed in a tangible medium. The hallmark of copyright protection is creativity that is manifested in an original work. While creativity is a basic requirement for copyright protection, the requisite level of creativity is low and most original works meet the standard. In fact, the U.S. Supreme Court stated that even an “extremely low” or “slight amount” of creative expression meets the standard, see Feist Publications v. Rural Telephone Service, 499 U.S. 340, 346 (1991)). Under this standard, copyright protection is available for original works in things as diverse as marketing or promotional materials, instruction manuals, specification sheets, catalogues, movie posters, painting and software code. As a general matter, copyright protection is available for most materials generated in connection with a product or service, even if it is not a new product or service. There is no required level of artist achievement required for copyright protection.