Now that we know what kinds of work are copyrightable, the next question is, how do we actually copyright the work? Unlike other categories of intellectual property, there is no registration requirement for copyrights, and a work is copyrighted as soon as it is created.
So why then would a person ever register her copyright? Although registration is not required, the copyright must be registered in order to sue for infringement of it. Note that this does not mean that you have to register your copyright before the alleged infringement occurred. All that is required is that your copyright be registered prior to suing for infringement.
Failure to register before the alleged infringement occurs may keep you from seeking statutory damages and attorney’s fees. Losing statutory damages is of particular importance because they are available even when actual damages are hard to prove.
Statutory damages range from $750-30,000. However, if a court finds that the infringement was willful (intentional or purposeful), the court can increase the award up to $150,000. These statutory damages are crucial because proving actual damages and lost profits is often difficult—especially in intellectual property cases.
In addition to preserving the right to seek statutory damages, proper registration makes proving infringement easier. The first step in an action for infringement requires showing that the copyright is valid. Usually the person claiming infringement must prove that a valid copyright exists. However, when a person has a registered copyright, the burden is shifted to the alleged infringer to prove the copyright is invalid.
To this point we’ve discussed what types of work are copyrightable, how to take a work from copyrightable to copyrighted, and the benefits of registration. That takes us to the next issue. How long will my copyright last? I will answer this question and more tomorrow.
Steve Rensch and Zach Price
3850 E. Baseline Rd. Suite 105
Mesa, AZ 85206