Copyrights: To Register or Not to Register, That is the Question

March 31, 2016

By Elizabeth Weber, Esq.

Copyright protection is a cornerstone of intellectual property law for those who create expressive works. However, a startling number of artists do not register their copyrights with the U.S. Copyright Office for one reason or another, ranging from a lack of knowledge on how to go about registering a copyright or the unwillingness to register because a work is, technically, protected under copyright law the moment it is created. Whatever the underlying reason, those who do not register their copyrights are at a stark disadvantage for one main reason: an unregistered copyright holder, meaning the individual who owns the unregistered copyright, is precluded from suing an individual who infringes upon the work’s copyright in court. In short, only registered copyright holders may bring actions of copyright infringement against alleged infringers.

With this in mind, Center for Art Law believes that providing some basic information on copyrights and copyright law to our readers would prove beneficial. Please note that this article does not, in any way, shape, or form, constitute legal advice. If our readers have any questions about copyright law, we strongly urge them to consult an attorney.

A Bit of Background Information on U.S. Copyright Law

Modern copyright law stems from the United States Constitution. The Constitution granted Congress the power to issue both patent and copyright protection “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I § 8, cl. 8.

Copyright law aims to achieve two distinct goals: first, to provide authors the exclusive right to benefit from their creative works for a limited duration and, second, to stimulate the creative atmosphere by protecting works from unfettered widespread use. Thus, Congress incentivized the creation of artistic works by imbuing authors with the exclusive right to use and benefit from such works for a set period of time.

What is Copyrightable Subject Matter?

Modern copyright law is codified in Title 17 of the United States Code. 17 U.S.C. § 102 (a) states that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression” and includes categories like literary, pictorial, and audiovisual works. Both published and unpublished works may qualify for copyright protection. Thus, so long as an artistic work is original and fixed in a tangible medium of expression, it may garner federal copyright protection.

The Code specifically precludes ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries from garnering copyright protection. 17 U.S.C. § 102 (b). However, the expression of these precluded subject matters may be protected in some limited circumstances.

Why Register A Copyright?

Once a copyright is infringed, the copyright holder may act to stop the infringer from exploiting the infringed copyright. The damages for infringement depend on whether the work was registered with the Copyright Office before any of the exclusive rights were violated. The amount of possible recovery ranges from $0.00, as actual damages may be nominal, to $150,000.00 per willful infringement if the copyright holder elects to seek statutory damages.  More detail about actual and statutory damages will be provided in the Remedies for Infringement: Actual Damages and Profits versus Statutory Damages section below.

A Copyright Basics Circular provided by the U. S. Copyright Office indicates that copyright registration provides the copyright holder with a number of advantages, including establishing a public record of the claimed copyright, which may dissuade potential infringers from unlawfully using the work; allowing the copyright holder to file a copyright infringement claim in court; establishing prima facie evidence of the copyright’s validity and of the facts set forth in the copyright certificate; and, “[i]f registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.”

Accordingly, registering a copyrighted work not only allows a copyright holder to sue an alleged infringer, but it also allows the copyright holder to seek statutory damages and attorney’s fees if the copyright holder registered the copyright within a certain time frame as discussed in 17 U.S.C. § 412. This may lead to a substantially higher damages award, which will be discussed in the Remedies for Infringement: Actual Damages and Profits versus Statutory Damages section below.

How to Register a Copyright

An application to register a copyright must contain three essential elements: 1) a completed application form; 2) a nonrefundable filing fee; and 3) a non-returnable deposit, which is a copy of the work being registered and deposited (hence the name) with the U.S. Copyright Office. These forms are available on the U.S. Copyright Office website. For reference, a step-by-step copyright registration guide is available on pages 7-12 of the Circular mentioned above.

Additionally, an applicant does not need a lawyer to register his or her copyright, so the applicant may fill out the requisite paperwork, send in the filing fee, and deposit a copy of the work with the U.S. Copyright Office at his or her own volition.

Copyright Infringement

A valid copyright issued by the U.S. Copyright Office provides the copyright holder with the exclusive right to use, reproduce, prepare derivative works, and perform the work publicly. If a third party infringes upon these rights and the copyright holder registered his or her copyright, the copyright holder may file a copyright infringement suit against the alleged infringer. The copyright holder may sue for injunctive relief, for the court to impound the infringing articles, and/or for damages stemming from the infringement.

Remedies for Infringement: Injunctive Relief and Impounding Infringing Works

If granted by the court, an injunction forces the infringing party to cease the infringing activities. Also, a copyright holder may move for or the court may order sua sponte the impounding of infringing works as the court deems reasonable. Finally, the copyright holder may seek either actual damages and any additional profits from the infringement or statutory damages.

Remedies for Infringement: Actual Damages and Profits versus Statutory Damages

A copyright infringer is liable for either 1) actual damages and profits stemming from the infringement or 2) statutory damages. A registered copyright holder is entitled to recover the actual damages suffered as a result of the infringement along with any additional profits gained from the infringement.

Alternatively, a registered copyright holder may elect, at any time before a final judgment is rendered, to recover statutory damages in lieu of actual damages and profits. Basically, statutory damages are set forth in the statute itself as opposed to being calculated based upon the harm suffered by the victim. In terms of copyright infringement, amounts vary for statutory damages from no less than $750.00 to no more than $30,000.00 per infringement as the court deems just.

Additionally, if the registered copyright owner proves (and the court finds) that the opposing party willfully infringed upon the copyright, the court may increase a statutory damages award to no more than $150,000.00 per infringement. Statutory damages awards are not always big money, though; if a registered copyright holder elects statutory damages and fails to prove willful infringement, the court may reduce the statutory damages award to no less than $200.00 per infringement.

Accordingly, the election of either actual damages and profits or statutory damages should be considered a strategic litigation decision. Registered copyright holders should consult with their attorneys and carefully consider the pros and cons of electing either set of damage awards.

Conclusion

There are certainly benefits derived from registering a copyrighted work. To summarize, in addition to allowing a copyright holder to file an infringement suit against an alleged infringer, registered copyright holders may also seek statutory damages and attorney’s fees depending upon when the holder registers the copyright – potentially leading to significantly higher damages awards.

However, artists should remember that simply because their works may be copied without permission, they need not take action. There is no requirement to enforce one’s copyright and there may be quantifiable benefits in seeing one’s work appear in another’s creative expression. While it is a good idea to consult an attorney with intellectual property questions and to protect one’s exclusive rights, the ultimate decision regarding these rights is open-ended and subject to the copyright holder’s interpretation.

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Sources:

• U.S. Const. art. I § 8, cl. 8.
• 17 U.S.C. §§ 101-1332 (2015).
• Copyright Basics, United States Copyright Office (May 2012), http://copyright.gov/circs/circ01.pdf.
• Copyright, Policy, Creativity, and Innovation in the Digital Economy, The Department of Commerce Internet Policy Task Force (July 2013), http://www.uspto.gov/sites/default/files/news/publications/copyrightgreenpaper.pdf.
• Heather Hummel, Photographers, Don’t Think You Need to Register Your Copyrights? Think Again, The Huffington Post (Dec. 17, 2014, 11:58 AM), http://www.huffingtonpost.com/heather-hummel/photographers-dont-think-_b_6335800.html.

*About the Author: Elizabeth Weber is a lawyer living in Brooklyn, NY.  She graduated from the University of Florida Levin College of Law where she received her certificate in Intellectual Property Law and served as an active member of the Art Law Society and the Journal of Technology Law and Policy. She is the Spring 2016 Postgraduate Fellow with the Center for Art Law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Instead, readers should seek an attorney.