A question that commonly arises in the copyright context is whether the
existence of copyright depends upon registration of the copyright in a
work. The answer is no – under the federal copyright law, as it presently
exists, the existence of a copyright is not dependent upon registration with the United States Copyright Office. Copyright in the
work exists from the moment the work is fixed in any tangible medium of
expression from which it can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.
There are, however, some important reasons why it is advisable to
promptly register the copyright in a work.
Under the federal copyright law, registration of a
copyright is a prerequisite to the right to bring a lawsuit for copyright
infringement. Fortunately, for purposes of bringing suit, registration
may be made at any time before instituting the lawsuit. Sometimes,
however, timing of the lawsuit becomes important, particularly if the
statute of limitations is impending. In such cases, having already
registered the copyright is a benefit.
Another reason why prompt registration is desirable,
has to do with recovering statutory damages and attorney’s fees. When one’s copyright is infringed upon, the ability to
recover a monetary award is tied to the ability to establish damages.
It is often difficult to prove actual damages, because there might not be
any way to show loss of sales or the like with any reasonable specificity.
The federal copyright law provides an incentive for registering the
copyright in a work by
entitling the owner to recover statutory damages and attorney's fees where
the copyright has been registered prior to the occurrence of the
infringement. Statutory damages are very useful, particularly in
situations where it
would be difficult, if not impossible, to quantify the damages suffered, because
they permit recovery within a predefined range of amounts for infringement,
and the award may be increased substantially where the infringement is
willful.
Theoretically, in order
to be entitled to statutory damages and attorney’s fees,
registration can be made at any time
during the life of the copyright and prior
to the infringement.
However, because one cannot predict when an infringement will take place, it
is advisable to register the copyright in a work promptly. Moreover,
there are some specific registration timing rules to keep in mind.
Under the federal copyright laws, for the benefit of
statutory damages and attorney’s fees to apply, unpublished works must be
registered before infringement occurs, and published works must be
registered within three months of the date of first publication if the
infringement occurs after publication but prior to the effective date of
registration. This latter provision essentially provides a three-month
grace period to protect against situations where the infringement occurs
before a copyright owner has had an opportunity to register a published
work.
Copyright registration is very inexpensive – only $30 per
work (and in some instances a collection or group of related works can be
registered for a single fee). Given the cost/benefit comparison,
registration should be utilized routinely, unless one wants to keep a work
secret (and even then there are rules for how to register works containing
trade secrets without disclosing the trade secrets).
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