If copyright becomes fixed at the moment of creation of the work – even without a formal notice of copyright – is the federal registration of the copyright even necessary? If the work is valuable to you or your business, the answer is a resounding “Yes”! While copyright registration is not required in order for a work to be afforded copyright protection, registration provides holders with several advantages:
Registration establishes a public record of the copyright claim. Because the registration serves as public notice of the copyright claim, an unauthorized user of the copyright is prevented from asserting innocent infringement as a defense. Copyright registration may be made at any time between the date of creation and the expiration of the life of the copyright 70 years from the date of death of the last surviving author of the work. After registration, any transfers of the copyright may be also be recorded with the Copyright Office.
Generally, registration is necessary for works of U.S. origin before an infringement suit may be filed in court. If a copyright is registered prior to the occurrence of any infringement, the holder will not have to scramble to submit an application for registration and may instead proceed directly to filing the infringement suit. The registrant may also be entitled to statutory damages and attorneys’ fees, as further outlined below. Holders of unregistered copyrights may not bring suit in a state or federal court until such time the copyright has been registered.
If the registration is made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate. If someone wanted to bring an action for infringement against the holder of the copyright registration, the onus is entirely on the accuser to prove the registrant is not the true owner.
If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorneys’ fees will be available to the copyright owner in court actions. The holder of a copyright registered within three months after publication of the work or prior to an infringement of the work does not have to prove he was actually damaged by the infringer’s use of the work. Conversely, the holder of a copyright registration that was not obtained in the timeframe set forth herein may only be awarded actual damages and lost profits.
Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. If you create a product for commercial distribution, this process will assist you with protecting your established domestic market.
Registration is inexpensive and no maintenance filings are required. The Copyright Office generally assesses an application filing fee of $35 or $55, the amount of which fee varies depending on the type of work and whether or not it was published prior to registration. While patent and trademark owners are required to periodically file registration maintenance documents in accordance with a strict schedule and submit fees relating to the continuance of their registrations, a copyright holder does not have to file any other documents or pay additional fees once a registration has issued.
Copyright registration does not have any disadvantages. Though the registration process is sometimes slow due to the high volume of applications submitted (at the writing of this article, the processing time for applications for the copyright registration of literary works is 8 months), the registration date is always retroactive to the date the application was submitted and any advantages tied to the registration date may be exercised prior to the issuance of the registration certificate. That being said, at the request of the registrant and for an additional fee of approximately $850.00, the processing of an application may be expedited if the copyright is the subject of a pending or prospective infringement claim or customs matter or if contract or publishing deadlines necessitate the expedited issuance of a certificate
For more information regarding copyright registration, please visit the U.S. Copyright Office web site, www.copyright.gov.
