Benefits of Securing Copyright Registration
The Copyright Act of 19761 protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”2 The “works of authorship” protected by copyright include such things as literary works, movies, music, and art,3 and the exclusive rights afforded a copyright owner by this protection consists of those enumerated in 17 U.S.C. § 106. Though copyright exists as soon as the work of authorship is fixed in a tangible medium, and there is no requirement to register the work with the U.S. Copyright Office, such registration has many benefits.
Litigation
Unless particular exceptions apply, copyright registration is required before a copyright owner may institute litigation for copyright infringement in federal court.4
Burden of Proof
Registration of a work before or within five years of publication is prima facie evidence of the validity of the copyright and the facts stated in the certificate.5 This shifts the burden of proof to the defendant to show that the copyright is invalid.6
Public Information
Registration provides information concerning the work to the public, such as name of the author, creation date, and type of work.
Importation of Unauthorized Copies
Registering the copyright for a work enables subsequent registration with U.S. Customs and Border Protection (“CBP”) so that the CBP can prevent the importation of unauthorized copies of the work.7
Damages
When a copyrighted work is infringed, the copyright owner may seek damages, but the types of damages available depend upon whether and when the infringed work was registered, as explained below.
Actual Damages and the Infringer’s Profits8
Actual damages represent “the extent to which the market value of the copyrighted work at the time of the infringement has been injured or destroyed by the infringement.”9 In addition to actual damages, the copyright owner is also entitled to the infringer’s profits that are not taken into account when computing the actual damages.10
The copyright owner must demonstrate their actual damages11 and the infringer’s gross revenues from which the amount attributable to the infringement are calculated.12 The drawback with actual damages and the infringer’s profits is that these amounts can be difficult to prove or even very low to nonexistent, thereby making an infringement lawsuit financially unfeasible.13
A copyright owner not eligible for statutory damages and attorneys’ fees as explained below is limited to pursuing actual damages.
Statutory Damages and Attorneys’ Fees
The Copyright Act provides that a copyright owner may elect to recover statutory damages instead of actual damages and profits.14 Such damages range from $750 to $30,000 for each work infringed;15 however, damages can be increased to $150,000 if the infringement is willful or decreased to $200 if the “infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright was innocent.”16
A copyright owner may pursue attorney’s fees and elect to recover statutory damages only if the work is registered before infringement begins or within three months of its publication.17
Injuctions
If copyright infringement is found, the court may also issue an injunction to prevent the defendant from engaging in the infringement18 and order that any infringing works be destroyed.19
Register Your Works
If you are interested in pursuing registration for your original work of authorship, please contact us to learn more.
[1] Pub. L. No. 94-553, 90 Stat. 2541 (1976).
[2] 17 U.S.C. § 102(a).
[3] Id.
[4] 17 U.S.C. § 411; 28 U.S.C. § 1338(a).
[5] 17 U.S.C. § 410(c).
[6] Saenger Org. v. Nationwide Ins. Licensing Assocs., 119 F.3d 55, 59 (1st Cir. 1997).
[7] 17 U.S.C. § 602(b); 19 C.F.R. § 133.31 to -.53.
[8] 17 U.S.C. § 504(b).
[9] Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 807 F.2d 1110, 1118 (2d Cir. 1986).
[10] 17 U.S.C. § 504(b).
[11] Key West Hand Print Fabrics, Inc. v. Serbin, Inc., 269 F. Supp. 605, 613 (S.D. Fla. 1966).
[12] 17 U.S.C. § 504(b).
[13] Lauratex Textile Corp. v. Allton Knitting Mills Inc., 519 F. Supp. 730, 732-733 (S.D.N.Y. 1981). Congress recently enacted the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act of 2020. Pub. L. No. 116–260, § 212, 134 Stat. 1182, 2176-2200 (2020) (codified at 17 U.S.C. §§ 1501-1511). Because litigating copyright infringement cases in federal court can be very expensive, complicated, and time consuming, the CASE Act establishes a “Copyright Claims Board” (“CCB”) to hear claims with values of $30,000 or less in a streamlined format. Copyright owners with these types of small claims often do not enforce their rights, thus the hope is that this type of “small claims court” will provide an avenue for them to do so. Copyright registration is still required for the CCB to render a decision, but the law allows a claimant to file a claim with the CCB at the same time as filling an application for registration. See Copyright Alternative in Small-Claims Enforcement (‘‘CASE’’) Act Regulations: Expedited Registration and FOIA, 86 Fed. Reg. 21,990, 21,990-91 (proposed Apr. 26, 2021); 17 U.S.C. § 1505.
[14] 17 U.S.C. § 504(c)(1).
[15] Id.
[16] Id. § 504(c)(2).
[17] Id. § 412.
[18] Id. § 502.
[19] Id. § 503(b).
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