Before we get into this blog post, I want to point out that copyright registration is optional and it is not a requirement for copyright protection.
So why seek copyright registration at all? There are three key incentives to register your work:
- Filing for copyright registration is a prerequisite for bringing a lawsuit for infringement.
- Registration creates the presumption that the copyright is valid.
- Most importantly, timely registration is a prerequisite for seeking certain remedies for infringement. (See 17 U.S.C. § 412 of the Copyright Act)
This third incentive is particularly beneficial because a copyright owner with timely registration may elect for statutory damages and may seek attorney’s fees. Copyright registration is timely if the filing occurred before the infringement of the published work, or the filing occurred no later than 3 months after first publication of the work.
Generally in an infringement suit an award of actual damages and any profits is available as one of the monetary remedies. Actual damages can consist of lost revenue, fair market value of a copyright license, or the actual price of the work and so forth. Calculating profits is more nuanced and it consists of examining gross revenue and deducting infringer’s costs and portion of profits not attributable to infringement of the copyrighted work. (See 17 U.S.C. § 504)
Electing for statutory damages can be a better incentive than actual damages and profits because the latter may be harder to show or be a smaller award than statutory damages. An award for statutory damages can be between $750 to $30,000 per infringed work in an action. Furthermore under statutory damages, if the court finds that the infringement was willful, then the award for statutory damages could be increased up to $150,000 per infringed work in an action.
However, where the court finds that the infringement was innocent (infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright), then the court may reduce an award for statutory damages down to $200. To counteract the innocent infringer defense, it’s best to affix a copyright notice in a position that will give reasonable notice. Generally for most works, copyright notice requires: the copyright symbol (c), the word “Copyright”, or abbreviation “Copyr.”; the year of first publication of the work; and the copyright owner’s name, abbreviation, or designation.
As for the copyright registration filing itself, the electronic filing fee for a basic copyright claim is currently at $35. So while not necessary, timely registration of a copyright is less burdensome, helps with copyright enforcement, and is a prerequisite for statutory damages and attorney’s fees in the event of infringement.