Copyright rights exist the moment the work is created. These rights are weak, however, and a rights holder cannot sue for infringement or obtain certain remedies without first registering their work. Without these remedies as a bargaining chip, the copyright owner will find it difficult to assert their rights. For this reason every work should be timely registered with the Copyright Office.
Background on registration.
Copyright law has a unique feature: Copyright protection exists the moment the work is created. There is no requirement that the work be registered to have copyright protection. The rights conferred upon creation, however, are very weak. For instance, a copyright holder may not sue for infringement, or obtain attorney’s fees or statutory damages, unless the work is registered.
When should you register your work?
In order to obtain fees or statutory damages, a published work must be registered within three months of publication. For unpublished works the calculus is much simpler: the infringement must not have occurred before the work’s effective registration date. Failure to meet these requirements, however, does not prevent the rights holder from suing and obtaining actual damages once the work is registered.
What happens if the work is not timely registered?
Failure to timely register a work under § 412 may not seem like a big problem, because you can still obtain actual damages. The reality, though, is that actual damages are difficult to prove and typically lower than statutory damages. Additionally, because attorneys’ fees are not recoverable if registration is untimely, it will be difficult for a rights holder to find an attorney willing to represent them.
Another benefit of registration is the specter of attorneys’ fees and statutory damages usually leads to quick settlement of the claim. No sane person will choose litigation where both statutory damages and attorneys’ fees are recoverable.
The message from this post is simple—always register your works with the Copyright Office! The registration fee is incredibly low–relative to patents and trademarks–and confers significant benefits. If you have any questions about registering your work contact me today.