Copyright Registration: Whether, When and Why
In the U.S., copyright protection subsists in a work of original authorship as soon as it is fixed in a tangible medium of expression. 17 U.S.C. Section 102 There is no requirement that the work be registered with the Copyright Office or that a copyright notice be affixed. As discussed below, however, there are circumstances when registration and affixing a notice are advisable.
17 U.S.C. Section 411(a) says that, generally, a copyright must be registered before the owner can bring suit for copyright infringement. Furthermore, Section 412 says that, generally, awards of statutory damages (Section 504(c)) and attorney’s fees (Section 505) are available only if the copyright has been registered. Given that the plaintiff’s actual damages or the defendant’s profits from infringement can be difficult and expensive to prove, awards of statutory damages and attorney’s fees might be the only way that a plaintiff can financially justify bringing an infringement suit.
Statutory damages are awarded in the court’s discretion, up to $30,000 for infringement of a given work (Section 504(c)(1)), or up to $150,000 in a case of willful infringement (Section 504(c)(2)). Note, however, that a defendant can significantly mitigate actual or statutory damages that otherwise would be awarded by proving a defense of “innocent infringement” (see, e.g., Section 402(d) with respect to sound recordings and Section 907 with respect to semiconductor chip products). Presence of a copyright notice can help defeat an innocent infringement defense.
In summary, if you believe there is a reasonable likelihood you will need to bring an infringement suit to enforce your rights as a copyright holder, you should:
- Place a copyright notice on the work and
- Register the copyright with the Copyright Office
Related post: Copyright: If You’re Going to Register, Register Right Away
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Dana Shultz is a business-savvy lawyer located in Northern California's San Francisco Bay Area (in the East Bay, near Oakland) who has in-depth knowledge of law, business, technology, and the needs of startup and early-stage companies.
This post was published on FizzTalk (as “When should I copyright?”) at http://www.fizztalk.com/post/When-should-I-copyright.aspx.