When the U.S. implemented the Berne Convention in 1989, registration ceased to be a prerequisite to the creation of copyrights. Since then, these rights automatically come into existence the moment an artistic work is created in a fixed form; such as when a photo is taken, a picture drawn, a song recorded, or software developed. However, there are significant disadvantages in failing to register copyright, which can make it all but impossible for copyright owners to enforce their rights and cause infringers to stop. As registration has been simplified by the Internet, the benefits are easily gained.
Copyright basics
Copyright is the set of exclusive rights granted to the creator, or “author”, of a particular expression of an idea or piece of information. They include the right to reproduce the work, to distribute copies, to create new works based on the work (derivatives), and to perform or display the work. While ideas or information are not protected in themselves, the creative, artistic or intellectual expression of the idea or information, the “work,” is granted this protection. Types of works protected by copyright include song lyrics, novels, plays and other literary works, music compositions and sound recordings, drawings, paintings and other visual works, sculptures, films and television shows, software, and architectural works. Under current law, copyright protection lasts for the life of the author plus 70 years. Special rules apply where the work is created as a “work for hire,” and the copyright is held by the person commissioning the work.
Legal benefits to registration of your copyright
A copyright exists from the moment a work is “fixed” in a tangible form. While registration is not necessary to own a copyright, it is required to enforce your rights. U.S. law also provides enormous legal and other incentives to register.
When another person copies, distributes, performs or otherwise invades the rights granted to you by copyright without your permission, that person has infringed your copyright. Prior to filing a lawsuit in order to protect your rights, stop the infringement, and recover damages, you must register the copyright with the U.S. Copyright Office. Registration of the copyright holds weight as evidence of your rights in a lawsuit; it shifts the burden of proof, forcing the infringer to prove that he has a legal right to use your work, such as through a licensing agreement.
If you did not register your copyright prior to the infringing action, or within three months of the publication of your work, the money damages you can obtain in a lawsuit are limited to the money you actually lost due to the infringement, and the profits made by the infringer through his misuse of your work. These damage amounts may be low or non-existent. The work infringed may not be the actual product that you sell, such as original artwork used on your company website. Likewise, the infringer may have generated little profit or even have given your work away, such as by posting your music for free download on his Internet site. Where you can only recover a small amount in damages, litigation may prove too costly to allow you to enforce your rights.
However, if your work is registered prior to its infringement, you may also seek set damages under U.S. copyright law, called “statutory damages”, which range from $750 to $30,000 from the time your work was infringed. The statutory damage amount may be increased to $150,000 if the infringement is found to be “willful,” where the infringer is found to have knowledge that he was infringing, rather than having an arguable excuse for having used it. Statutory damages may be the better choice of recovery, where actual damages are hard to prove, or where there are multiple works infringed.
Where the copyright was registered prior to the lawsuit, you may also recover your attorneys’ fees and litigation costs. This can be a great benefit, where the money damages are low but you, as the creator of the work, want to stop another from misusing it. It is common in the U.S. for an attorney to charge a percentage of whatever damages are recovered as his or her fee; while the percentage may appear high, 30 to 40 percent of the total recovered, the attorney risks getting no payment if no damages are recovered. When potential damages are low but attorneys’ fees and litigation costs are available because of prior registration, your attorney will be able to invest the time and effort necessary into winning your case.
Additional benefits to registration
Registration of your copyright can provide additional benefits outside of the courtroom. Upon registration, you will receive from the U.S. Copyright Office an official certificate of registration. This formal document gives the appearance of stronger protection than simply asserting your rights in a letter or email. This may be especially true when the infringer believes that he obtained the right to use the work from someone else claiming to own the work. The perceived strength of a formal certificate is likely to aid its owner in getting a website offering the infringed work taken down by its Internet service provider, or to bring quick settlement of any disputes, avoiding the cost of litigation. Registration is also required before a copyright owner can register with the U.S. Customs Service to gain that agency’s help in preventing the importation of products that infringe your copyright, such as “bootleg” copies of CDs. Registration creates a public record of your copyright claim and shows your intent to protect your rights.
Registration is Inexpensive and Quick
Our professional staff can quickly and inexpensively complete the documentation required to register your copyright. A typical work may be registered for less than $200, in addition to the Copyright office filing fee of $45. Some works, like individual songs recorded on a CD, can be registered as a group, saving additional registration and legal fees. This minimal investment in copyright registration can provide significant dividends.
