Because copyright registrations are not required to claim rights in the underlying work, a lot of people reasonably question ? why bother?? After all, an author secures a copyright as soon as some creative form of expression is fixed in a tangible medium.? Right? ?The truth is, it really is not all that simple ? or at least not always.? So, while many proceed in the belief that they are protected by simply putting a copyright notice on their work, it is still a good idea to pursue a copyright registration ? particularly if you see value in your work.? In considering this, we encourage clients to recognize that there remain some significant benefits in registering a work with the United States Copyright Office, including:
- Public notice of ownership.? With a public notice of ownership, your work will be published in the Copyright Office?s Catalog (?Catalog?).? This means that it will be searchable to the public. As a result, any and all who might wish to make use of the work will be able to search the Catalog and immediately be alerted of your interest and its protection. Inclusion in the Catalog provides constructive notice to the public of your ownership interest and helps defeat claims of ?innocent infringement.?
- Legal evidence of ownership.?If someone were to use your work, registration helps to avoid a costly dispute over ownership.? Copyright registration provides proof of your ownership and relieves authors of a legal or evidentiary burden, after the fact. After your work is registered, someone else claiming the work would have the burden of disproving your ownership (but conversely, if you fail to register the work and someone else does, you would then have the burden of proving authorship of your own work).
- Validity.? Registration demonstrates the validity of copyrights if registered within five years of publication. Effective and timely registration can prevent future challenges to rights in the work.
- Maximization of damages. Absent a registration, a copyright holder is limited to actual damages in the case of infringement. Actual damages are limited in scope ? they are often nominal and can be difficult to prove.? To the extent that a registration is secured, the registrant or copyright holder is entitled to statutory damages and attorneys? fees.? In practical terms, that means that a copyright holder may be eligible for statutory damages of up to $150,000 per infringement, plus attorneys? fees. However, to claim statutory damages, registration must have occurred within three months of the work?s publication or before infringement is alleged to have occurred.? Timing of the filing is, therefore, critical.
- Ability to bring an infringement suit. The most important benefit of copyright registration is perhaps the right to enforce your rights.? Far too many clients don?t appreciate that even though a copyright holder has rights in a work, those rights cannot be enforced through the courts — unless the work is registered with the U.S. Copyright Office. That means that without registration, a copyright holder has no legal recourse against infringers.
SMART TIP:? We generally counsel clients to proceed with registration of a work in which they perceive value ? within three months of publication.? By doing so, a copyright holder may avail themselves of the benefits outlined above.? Because the filing fee is nominal (i.e., $35.00), it seems impractical to avoid registration on the basis of costs alone especially when the benefits are manifold over those costs.
If you have questions about registering a copyright, or are ready to register your work, please feel free to contact us.? We are happy to walk you through the process.