Why You Need to Maximize Your Copyright Protection Early
Copyright is a form of protection grounded in the U.S. Constitution granted for original works fixed in a tangible medium of expression and therefore exists the moment your work is created. 17 U.S.C. Code § 102. But you also have the option of registering the copyright of your original work with the Copyright Office. Why do so if you already have a copyright simply by virtue of creating something? There are several advantages as well as tips as to how to maximize such protection.
Advantage #1: The Right to Pursue Copyright Infringement Lawsuits
The most apparent advantage is you can only pursue a federal infringement lawsuit if you register your work with the Copyright Office. So if someone copies your work in a way that you believe infringes on your copyright, you may only initiate a lawsuit against that person if you have a copyright registration for that work. It is advisable not to wait the last minute to register your work as it may cost around $800 to have registration expedited by the U.S. Copyright Office. Additionally, registration will make a public record of your copyright claim in your work. This public record serves as an even stronger notice of your ownership claim and basically provides the entire world such notice.
Advantage #2: More Likely to Win In Court
You can register a copyright any time within its lifetime, which includes 70 years after an author’s death. However, there are even greater advantages if you wisely elect to register your work within certain time frames. Firstly, if you register your work before or within five years of publication, the registration will be considered prima facie evidence in a court of law. This means there will be the presumption that the work is copyrightable and that the facts stated in the registration certificate are true. 17 U.S.C. § 410. The registration may include information such as the name of the author, the title of the work, the name of the copyright owner, the effective date of registration, and the date the work was published. This means that in the event of an infringement suit, if you have a timely registration, the burden of proving your copyright will automatically fall on the defendant rather than having the burden fall on you to prove you have a valid copyright.
Advantage #3: Reduced Legal Fees
Secondly, if you file your registration of copyright within three months of publishing your work, or at any time prior to infringement (or, in the case of unpublished works, before the end of the first month after initially learning that your work was infringed), statutory damages and attorneys’ fees are available to the copyright owner in an infringement suit. 17 U.S.C. § 412. Statutory damages are predetermined payments established by law and typically range from $750 to $30,000 per infringed work (though they can be as high as $150,000 per infringed work for willful infringement or as low as $200 where there was no willful intent or had no reason to believe the use was infringing). Moreover, such timely registration allows you to request reimbursement of your attorneys’ fees and the costs of filing the lawsuit. If you do not end up registering your work prior to the infringement or within the three months of publication, your remedy is an infringement suit. This suit is limited to the actual damages you suffered from the infringement, any of the infringer’s additional profits that are attributable to the infringement, and injunctive relief.
Advantage #4: Enhance the Value of Your Creative Work
Although copyrights automatically arise upon creation of an original work of authorship, registering the copyright with the U.S. Copyright Office can greatly enhance their value. Copyright owners should especially consider registering copyrights when the work at issue has market value. Registration is particularly advisable when a work is important to business operations or other profit-seeking activities. Fortunately, registering copyright for your work is not difficult. All you need to do is set up a free electronic account at www.copyright.gov. The Copyright Office offers many publications and help screens to aid you through the process. Also, note that your work does not need to be published in order for you to obtain protection.
If you are not comfortable going through the process yourself, at Cartee LC, we are very familiar with the application process for trademarks. If you have any questions, please do not hesitate to contact our office. We are your Orange County trademarks, copyright, and business litigation attorneys, here to help.