Registration of copyrights is not mandatory in order to obtain copyright protection. As to works published or unpublished after January 1, 1978, a claimant can register a work at any time during the life of the copyright. As to works published or unpublished prior to January 1, 1978, a claimant can register a work during the initial term of copyright. (17 USC section 408) However, for works that originate in the United States and certain other works, a party must have registered the work before the party can commence an action for infringement. In this latter regard, Section 411 provides in part:
Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.
But there are some significant benefits that come from registration and among these are the following.
Registration establishes a public record of the copyright claim. Along with the appearance of a copyright notice (no longer required but absolutely recommended), registration can go toward defeating a later claim by an infringer that the infringement was “innocent,” thereby reducing the damages an owner might otherwise obtain. (Section 401 (d))
If the registration is made within five years from the date the work was published, the facts as stated in the certificate are deemed “prima facie” evidence of those facts. (Section 410 (c)).
But perhaps of greatest significance is that if the registration is made within three months after first publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees can be available to the copyright owner in court actions. In this regard, the Copyright Act provides:
§412. Registration as prerequisite to certain remedies for infringement
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) or an action instituted under section 411(b), no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for--
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
This is significant for without the statutory damage award, a claimant must prove actual damages. That can be quite difficult, especially if the claimant cannot show a “track” record of previous earnings and the loss of such earnings or some other admissible evidence of provable damages. Without this track record or other such admissible evidence, proving that the claimant has been harmed by any claimed infringement appears to the courts as speculative. But the ability to obtain statutory damages eliminates the need to prove what actual damages. From a negotiating standpoint, if a claimant has a registered copyright which has been infringed upon, if the alleged infringer knows that not only might he or she lose the case but might have to pay statutory damages as well as the claimant’s attorneys fees, this can go a long way toward driving a settlement and eliminating the need to file a litigation. Statutory damages can range anywhere from $750.00 all the way up to $150,000.00 per act of infringement. (17 USC Section 504 (c)
And registration is a pre-requisite to the filing of any copyright infringement action.
Copyright © 1996, 2003, 2008 Ivan Hoffman. All Rights Reserved.
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.
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