Ask the Attorneys: Registering Your Copyrights -- Just Do It!
I’ll say it as plainly as I can: if you do not promptly register your works with the Copyright Office, you’re setting yourself up for major disappointment. There are few things more frustrating for a copyright lawyer than to have to tell a client that, yes, their work has been infringed, but no, there is no cost-effective remedy. Worse still is having to tell them that it’s their fault because they didn’t register on time.
New media start-ups in particular are increasingly adopting the stance that it is better to seek forgiveness than permission – that is, infringe now, settle the infringement lawsuit later at pennies on the dollar. The only effective way to make sure you get paid for your work is timely registration, which hands the copyright owner a mighty club with which to beat infringers; without timely registration, the copyright owner may as well be unarmed.
Before the present Copyright Act went into effect in the 1970's, there was very little protection available for works not registered with the Copyright Office; generally speaking, either you registered when you published or you lost all federal protection. In order to bring the United States in line with the rest of the world, Congress changed the rule in the present Copyright Act: copyright protection now begins at the moment the work is created, without the need for registration.
But that’s only part of the story. Lawmakers like the old registration requirement – for one thing, it creates a record of who owns which works, or at least who created them and when, something impossible if no one registers their works. So, to encourage registration, Congress added a carrot and a stick. First, the carrot: copyright owners who register their works before the works are infringed can choose to be awarded “statutory damages” – that is, minimum damages, starting at $750 per infringement and climbing (in certain circumstances) up to $150,000, which a court can award at its discretion without having to weigh tedious and expensively-presented evidence about how much damage the infringer actually caused. The court may also award a victorious copyright owner her attorneys’ fees and costs.
Now, the stick: copyright owners who do not register before infringement are barred from all of this; indeed, registration is required in order to bring an infringement suit at all, and delay may in some cases end a suit before it’s begun. Once in trial, actual damages must be expensively proved before the court, and a winning copyright owner will still have to pay her own attorneys’ fees and costs. Even in clear cases of brazen infringement, copyright owners have spent years fighting and winning court battles, only to receive awards amounting to only a tiny fraction of their expenses.
Happily, copyright registration is simple to do yourself, and the Copyright Office has progressively made registration cheaper and easier. Registration of a work online costs $35 (down from $45 a few years ago), and the completed form and a copy of the work can all be submitted online at www.copyright.gov. Unpublished works, or works all published together as part of a collection (songs on a single album, for example) can all be registered together under a single fee.
Do yourself (and your lawyer) a favor: register your works now and save yourself heartache later!
Joshua Graubart is an entertainment and intellectual property litigator with Winslett Studnicky McCormick & Bomser LLP.
This blog post provides general information about the law for the benefit of Fractured Atlas members. The information contained in this post is not legal advice. Please consult with a lawyer to obtain advice about how the law impacts your particular situation.