Gavel & Glass Briefing - Copyright Basics for Associations and Nonprofits: Protection, Registration, and the DMCA
Associations and nonprofits create reports, photographs, training materials, videos, and conference recordings. They also use work from speakers, volunteers, and vendors. Knowing when copyright begins and what registration adds helps protect their work and avoid unauthorized use.
What Does Copyright Protect?
Copyright protects original expression, not ideas, facts, or methods. It may cover a report’s wording, a photograph, or a recorded presentation. The work must be recorded in a form people can perceive or reproduce, including a digital file (17 U.S.C. § 102).
The owner generally controls copying, distribution, adaptation, and public display or performance, subject to limits such as fair use (17 U.S.C. §§ 106–107). Nonprofit status and online availability do not themselves confer permission.
Copyright generally starts with the human author. An association may own qualifying employee work, but paying a contractor or accepting a volunteer contribution does not automatically transfer ownership. Copyright transfers generally require a signed writing (17 U.S.C. §§ 201, 204). Contributor agreements should clarify ownership and permitted uses.
When Does Copyright Take Effect?
Protection generally begins automatically when an original work is fixed—for example, when someone saves a document, takes a photograph, or records a presentation. Publication, registration, and a copyright notice are not required. See the U.S. Copyright Office’s overview.
Registration has its own effective date: if the Copyright Office accepts the application, that date generally is when it received the complete application, deposit, and fee—not when it later issued the certificate (17 U.S.C. § 410(d)).
Registered Versus Unregistered: Why Register?
An unregistered work remains protected; its owner can license it and object to unauthorized use. Registration adds several advantages:
Public record. Registration records the claimed work and owner.
Access to court. For a U.S. work, the Copyright Office generally must register the claim—or refuse a proper application—before the owner files an infringement suit. Applying alone is generally insufficient (17 U.S.C. § 411(a); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC (2019)).
Evidence. A certificate obtained before or within five years after first publication serves as initial, rebuttable evidence of validity and the facts it states (17 U.S.C. § 410(c)).
A different path to damages. When the registration timing rules permit, an owner may choose statutory damages instead of proving actual financial loss or the infringer’s profits. A court ordinarily may award $750–$30,000 per work, or up to $150,000 per work if the owner proves willful infringement; these are possible awards, not automatic payments (17 U.S.C. §§ 412, 504(c)). Timely registration may also preserve eligibility for a discretionary award of attorney’s fees (17 U.S.C. § 505).
What if the work was not registered in time? The copyright still exists. After satisfying the general registration prerequisite to filing suit, the owner may seek actual damages and any additional profits attributable to the infringement. Unlike statutory damages, this path requires evidence: for example, an established licensing fee or lost sales to support the owner’s loss, and relevant revenue to support a profits claim. The defendant may establish deductible expenses and show which profits came from factors other than the work (17 U.S.C. § 504(b)).
For a published work, registration within three months after first publication can preserve statutory damages and attorney’s-fee eligibility even if infringement began before registration. Registering later generally cannot restore those remedies for an infringement that already began. Registration does not guarantee a recovery (17 U.S.C. § 412).
Where Does the DMCA Fit?
The Digital Millennium Copyright Act (DMCA) is not a synonym for ordinary online infringement. Its notice-and-takedown process lets a rights holder ask an online service provider to remove allegedly infringing user-posted content. Providers may qualify for limited liability if they meet the law’s conditions; this does not automatically excuse an association’s own unauthorized post (17 U.S.C. § 512).
Another provision addresses copyright-management information, such as a creator’s name, ownership notice, or usage terms. Knowingly falsifying or intentionally removing it can create a separate claim when the law’s additional intent and knowledge requirements are met (17 U.S.C. § 1202). A DMCA demand should be evaluated on its actual allegations.
A Practical Approach
Associations can inventory important works, confirm ownership under contributor agreements, retain third-party licenses, and prioritize timely registration. Crediting a creator is not the same as obtaining permission. If a claim arises, preserve relevant records and consult counsel about rights, defenses, and deadlines.
Disclaimer: This article provides general educational information and practical contracting considerations. It does not constitute legal advice, and readers should not act or refrain from acting based on this information without obtaining advice concerning their particular circumstances. Publication of this article does not create an attorney-client relationship. Do not send confidential information in response to this article. A lawyer-client relationship arises only after the firm completes its conflicts-review process and confirms the representation in writing. Results and outcomes depend on the specific facts, contract terms, venue, and applicable law.
