A few words about "copyrighting" a work. You should avoid using that verb, because it's almost always going to be unclear or just incorrect, but here's a brief explanation:
Copyright requires originality – that the work has been originated by its creator; and creativity. The bar for “creativity” is fairly low.
Copyright exists when your work is created, and fixed in a tangible medium. So if you created something that can be protected by copyright, you probably have the copyright. Your protection isn’t dependent on registration.
However, copyright registration is required to bring a copyright infringement lawsuit – for U.S. authors suing in the U.S.
To repeat, copyright registration is generally required before suing in the U.S. (*). But the copyright itself exists at the point of creation and fixation (assuming there’s a copyright).
For instance, an owner of a copyright can submit a DMCA takedown, or send a cease and desist letter, without registering the copyright.
And copyrights are regularly assigned and licensed without registration.
So an article that says a work “hasn’t been copyrighted yet” is being imprecise. It’s usually referring to the copyright registration process. And that’s different than copyright protection.
The owner of the copyright can register the copyright immediately before filing. There’s an expedited process for registration, which costs more but is sometimes necessary.
There are advantages to registering early, though. For instance, if the copyright was registered *before* infringement, the owner can obtain statutory damages and attorneys’ fees if they win the lawsuit.
So, in these lawsuits over Fortnite dances, why are we seeing articles that see that these works are “being copyrighted.” Well, that’s wrong. But here’s what they mean to say.
First of all, in each of those lawsuits, there are issues of whether those dances are sufficiently original or creative enough for copyright protection. And if they are, there are issues of ownership.
Whether these works are eligible for copyright is a wholly different thread. I discussed those issues in our newsletter
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A copyright registration provides “prima facie” evidence of the copyright’s validity. Each of the plaintiffs has applied to register the copyright, and likely didn’t expedite the process. So they don’t have registration certificates yet.
How can they do that? Some jurisdictions, including California’s, have held a plaintiff can commence a lawsuit after they have submitted all the required materials to the Copyright Office. Other courts require that the plaintiff have the registration certificate before suing.
The Supreme Court is currently reviewing this issue – what is necessary to satisfy the copyright registration requirement of the Copyright Act. But I don’t think their decision would be applied retroactively to these lawsuits.
So, in the court where they are suing, Milly and Ribiero and Backpack Kid likely satisfied the copyright registration requirement.
But because the Copyright Office hasn’t yet blessed their works with registration, these plaintiffs don’t get that prima facie evidence of the validity of their copyrights. And they could use that.
Another big concern for plaintiffs – they won’t be eligible for statutory damages or attorneys’ fees because the copyrights weren’t registered before the infringement. But…
But defendants, if they prevail, might be able to collect attorneys’ fees if they prevail. And they might seek that, especially if they show that the dances aren’t protected by copyright.
