Copyright Registration and Why You Should Take Advantage of It
A common question I get from a lot of authors, artists, creators, and software developers is: “Should I register my copyright?” While my answer is always an emphatic YES, I understand that this question comes from an area of uncertainty. Uncertainty about what a copyright is, uncertainty about what the benefits of a copyright registration are, and uncertainty about the procedure and costs associated with registering a copyright.
This blog takes a look at each of these areas of uncertainty and provides an overview of copyright registration and why you should take advantage of it.
What is a copyright?
According to Section 102 of the Copyright Act, copyright protection is provided to original works of authorship that have been fixed in a tangible medium of expression by granting certain exclusive rights to the owner. A copyright owner exclusively controls the rights to:
(1) reproduce copies of the work;
(2) distribute copies of the work;
(3) publicly perform the work;
(4) publicly display the work;
(5) prepare derivative works; and
(6) digitally transmit the work.
This definition uses a lot of legal language which can be confusing, so I recommend checking out our previous blog post on Copyright in order to learn some of the basics. Even though a copyright holder is empowered with these rights as soon as a work is fixed in a tangible form, the work has to be registered through the U.S. Copyright Office as early as possible in order to take advantage of several key benefits.
Benefits of Copyright Registration
(1) Allows the owner to bring a lawsuit in federal court for copyright infringement.
This first benefit is key. Failing to register your work means that you are not going to be able to bring suit against a potential infringer in a federal court. This means that you are left using different avenues such as state court where the judge may not be as familiar with copyright laws. Having the option to bring suit in federal court is important because copyright is primarily federal law.
(2) Allows the owner to seek statutory damages and attorneys’ fees in a copyright infringement lawsuit.
If you fail to register your copyright within three months of publication then you forfeit statutory damages and attorneys’ fees. This means that you are only left with actual damages which are often much lower than statutory damages are and are also harder to prove.
(3) Serves as prima facie evidence of the validity of the copyright.
When you bring a copyright infringement lawsuit in federal court, you have to prove that you own a valid copyright. If you have previously registered your copyright with the Copyright Office this requirement is effectively waived. This is beneficial because it saves you time and money in the litigation process.
(4) Establishes a public record regarding the copyrighted work.
Oftentimes in copyright infringement lawsuits, the infringer/defendant (also known as the person copying your work) will claim they did not know that your work was copyrighted and any unlawful activity on their part was merely innocent because of their lack of knowledge. However, if you have registered your copyright with the Copyright Office this argument is unavailable to the defendant because copyright registration establishes a public record and serves as notice to everyone else out there that your work is subject to copyright. This is great because it allows you to seek maximum recovery in the event someone infringes your work and earns money that otherwise would have been yours.
(5) Allows the owner to register with U.S. Customs and Border Protection in order to prevent the importation of infringing copies of the work.
Counterfeit goods are commonly made on the cheap in overseas countries and then brought into the U.S. for sale. U.S. Customs and Border Protection (CBP) is a federal agency that provides security and facilitation operations at 328 ports of entry throughout the country, and if you register your copyright with the Copyright Office you can take advantage of registering with CBP in order to keep goods that infringe your copyright from entering the U.S. In 2019, CBP seized over $1.5 billion in goods that violated intellectual property rights.
As you can see, registration is the means to enforcing your rights as a copyright owner. Since we are located in Music City, let’s use a song in our example. If you own the copyright to the song Old Town Road and someone else uses that song without your permission, then you cannot file a lawsuit in federal court against them without having previously registered the copyright in that song. To put it simply, registration is what gives your copyright teeth. The second benefit in the list above is statutory damages. Statutory damages are generally between $750 and $30,000 per work, as determined by the court, but can be as high as $150,000 per work if the infringement is willful (intentional). Let’s turn back to our example using Old Town Road. Sure, a demand letter printed on law firm letterhead may deter some people from using Old Town Road without your permission, but if you registered the copyright to that song beforehand then you could bring a lawsuit in federal court and potentially recover hundreds of thousands of dollars in statutory damages. Copyright registration is important because it allows the copyright owner to enforce his or her rights and make sure they get paid appropriately. The benefits of copyright registration really cannot be overstated.
The Procedure and Costs Associated with Registering a Copyright
Today, most copyright registrations are filed online with the Copyright Office. The online filing system is simple and available for most types of copyright applications. This application for copyright registration can be completed and filed by the copyright owner or an authorized representative (such as an attorney).
The cost of copyright registration depends on several factors, such as what the underlying work is and whether you are using a service to complete the registration for you; however, each registration generally requires a filing fee. The current cost of online registration is $45 for a single application and $65 for a standard application. A complete list of the fees charged by the Copyright Office for various services can be found at the Copyright Office’s website.
Once you have properly completed your application for copyright registration and paid the applicable filing fee, you must deposit a copy of the work with the Copyright Office. This deposit requirement is typically satisfied by a submitting the first published edition or the “best edition” of the work with the Copyright Office. For example, when registering an audio recording that was released digitally you might deposit a .WAV file with the Copyright Office that has all of the metadata detailing the writer, producer, engineer, etc. For a complete list of what the Copyright Office deems to be the best edition of various types of works see the Copyright Office’s website.
Why You Should Take Advantage of Copyright Registration
Copyright registration provides significant benefits at a very small cost. The ability to file a lawsuit in federal court and seek statutory damages goes a long way in enforcing your rights, and the small filing fee charged by the Copyright Office makes registration worthwhile. In addition, the ability to monetize your creative work using the tools provided by digital platforms (such as YouTube’s Content ID system) is made much easier if you are the registered owner of your copyright.
If you still have doubts about whether copyright registration is right for you, or just need help completing the registration, feel free to contact us.
Also, contact us with any other questions you have about all things copyright. Our entertainment and intellectual property attorneys can answer your questions and make sure your legal needs are properly taken care of!
Photo by Markus Winkler on Unsplash
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*The material and information in this blog is for general informational purposes only. In no way is this information to be construed as legal advice for a particular situation.*