Copyright 101: When Do I Register My Copyright And Why Does It Matter?
Copyright registration is tricky bit of strategy. You don’t need a registered copyright to publish and sell your work, and not having one won’t stop you from suing an infringer (well, it will – you have to register your copyright before you can file a claim for infringement; it’s just that you’re allowed to do that after the infringement has already occurred). If that’s the case, why is it that we lawyers are always telling you to register your copyrights as early as possible?
The answer is pretty simple: while you can sue someone for infringement that occurred before you registered your copyright – once you register, that is – you forfeit certain rights by not registering before you get ripped off. It just so happens that those rights are the cornerstone of copyright litigation: attorney’s fees and statutory damages.
“Attorney’s fees" means that the winner of the copyright lawsuit, in addition to any other remedies he or she might receive, gets to push all of the cost of the lawsuit onto the loser. So, if I sue you for copyright infringement and win and I have a valid pre-infringement registration, you are going to be paying your lawyer’s bill and my lawyer’s bill. Plus whatever else the court decides you owe me.
Oh, a little note – if the defendant wins, getting attorney’s fees isn’t necessarily blocked by a failure to have a valid pre-infringement copyright. After all, the defendant obviously doesn’t have a copyright in the first place.
“Statutory damages" are the Holy Grail of copyright remedies; they do away with the difficulty of proving actual profits or actual damages resulting from the infringement and allow the jury to award a flat fee between $750 and $30,000 per copyright infringed. If the infringement was willful, that amount can go up to $150,000.
For most copyright owners – those whose copyrights do not earn them a significant profit and who cannot prove that the infringer has made a significant profit from the unauthorized reproductions – statutory damages and attorney’s fees are often the only way to bankroll an infringement action. Without them, many copyright holders find that it is impossible to pursue what would otherwise be a nearly certain victory.
When, then, do you need to register your copyright in a good in order to make sure that you have not waived these remedies? The answer is actually both fairly simple and fairly forgiving: you have three months from the date of publication to file your copyright registration in order to receive retroactive protection from the date of original publication.
When is your work published? When you have “distributed copies or phonorecords of [the] work to the public by sale or other transfer of ownership, or by rental, lease, or lending." 17 USC 101. Likewise, your work is considered published if you offer to distribute copies to someone so that person can sell, display, perform, or otherwise expose your work to the public at large. Merely displaying or performing your work in public – yourself – does not constitute publication, however; ownership or possession of a copy of the work must intentionally leave your control and that work must enter the public sphere before it is considered published.
So, then, you have three months from that moment to file for copyright protection if you want to have certain access to all of the remedies the Copyright Act provides for any infringement taking place from the moment of publication until the term of your copyright expires.
A note: this retroactive copyright protection will not cover infringements that take place before the work is published. The only protection for such infringements is a preregistration, a form of copyright protection that is more expensive that a simple post-publication registration and is not helpful in most cases. For creative professionals, however, preregistration may be a matter for serious consideration – when you are shopping your manuscript or other work to have it published, the only way to ensure access to all of the copyright remedies should the work be infringed before publication is to preregister.