Copyright Registration: The Best Remedy For Infringement

There is an old legal maxim that for every right, there is a remedy. Under U.S. copyright law, the maxim should be for every copyright infringement, there is a remedy–but only if the copyright is timely registered.

It is true that, under U.S. copyright law, a copyright emerges automatically when a creative work is “fixed in a tangible medium of expression” (e.g., when a person records an original song or writes source code for a computer program, the creative work is “fixed” and a copyright emerges automatically). The ability to obtain a remedy for infringement, however, does not arise automatically—the work must be timely registered with the U.S. Copyright Office.

Unfortunately, it is often only when copyright holders face infringement of their works that they learn that failing to timely register their copyrights deprives them of very important legal remedies and protections. This article discusses the benefits of copyright registration and provides an overview of the registration process.

Benefits of Copyright Registration

There are four primary benefits to registering copyrights with the U.S. Copyright Office: (1) access to courts, (2) presumption of copyright validity, (3) availability of statutory damages, and (4) recovery of full costs, including attorney’s fees.

Access to Courts

Copyright registration is a prerequisite to file a claim in federal court for infringement of a U.S. work.1

Presumption of Validity

A presumption of validity attaches to a copyright if it is registered within five years of publication. This presumption substantially reduces the evidentiary burden placed on plaintiffs during litigation. In essence, a court will presume that the plaintiff has a valid copyright and force the defendant to prove otherwise. Without timely registration, the plaintiff must show that the work is entitled to the protection of U.S. law (including showing that the work is copyrightable), that the work is owned by the plaintiff, and that the court has jurisdiction.

Statutory Damages

Perhaps most importantly, timely registration allows a copyright holder to elect to recover federally prescribed statutory damages. If a work is registered within three months of publication or before the infringement occurs, the owner can obtain statutory damages as a monetary remedy. Specifically, once infringement is proved the copyright owner can elect to receive up to $150,000 USD for every work willfully infringed, even if the actual damages are much smaller. (The Court has the discretion to determine the actual amount of statutory damages.) Timely copyright registration thus creates the potential of obtaining a remedy worth far more than the actual loss suffered by the infringement.

Attorney’s Fees  and Costs

Registered copyright holders also may, at the Court’s discretion, be awarded full recovery of their costs, including their attorney’s fees. As a practical matter, this is often the most decisive factor in deciding whether to file suit to enforce a copyright, because legal fees can easily dwarf the actual damages and even the maximum statutory damages a plaintiff might recover in the case of protracted litigation. Likewise, infringers face the unpleasant possibility of paying their own costs and attorney’s fees as well as those of the plaintiff—in addition to any damages awarded by the Court. Timely registration creates significant leverage when negotiating with a copyright infringer, which could lead to a favorable settlement.

Beyond these four primary benefits, there are other compelling reasons to register a copyright; namely, registration creates a public record of the copyright, is generally required to obtain an injunction against an infringer, and obtaining these benefits is relatively easy and affordable.

Copyright Registration Process

The U.S. Copyright Office generally charges a $35 fee to register a copyright electronically through the Office’s online system. The Copyright Office’s website also provides numerous publications describing both U.S. copyright law and registration, such as “Copyright Basics”, “Frequently Asked Questions about Copyright,” and “International Copyright Relations of the U.S.,” which documents the relevant agreements between the U.S. and other countries.

Although the registration process is fairly painless — especially in comparison with the tremendous benefits that come from registration — there are additional benefits to working with experienced copyright counsel during the registration process. Our firm routinely handles copyright registration applications with the U.S. Copyright Office. Along with guiding clients through the general registration processes, we can properly address complicated deposit requirements, correct authorship listings, identify any preexisting materials that may conflict with your copyright, and take advantage of years of experience working with examiners and attorneys at the U.S. Copyright Office in the event that particular issues with an application arise.

Despite knowing about the benefits of registration, many copyright owners, especially in the software industry, forego registration. There is a misconception that registration is only worthwhile if the potential for massive infringement exists. However, massive infringement is not required for registration to be beneficial. For example, if a software product is over-deployed by a licensee, the minimal costs of copyright registration provide maximum benefit because the defending licensee knows it is subject to substantial statutory damages and might have to pay the copyright holder’s attorney’s fees, as well as its own. This, in turn, creates significant leverage when negotiating a settlement with a copyright infringer.

Under a basic cost-benefit analysis, it becomes readily evident that copyright registrations are one of the least expensive legal investments copyright holders could make to maximize critical protection of their valuable creative works. For every copyright infringement, there is a remedy–but only if the copyright is timely registered.

1Very broadly, a “United States work” is a work that is either: (1) first published in the United States or is published simultaneously in the United States and another country; or (2) authored by nationals, domiciliaries, or habitual residents of the Untied States. See 17 U.S.C. § 411 (2006). For more information about registration and foreign works, please see our article titled: Maximimizing Copyright Protection at Minimal Cost: Why Foreign Companies Should Register with the U.S. Copyright Office.