Registering your creative work with the U.S. Copyright Office isn’t mandatory to establish a copyright, but it can keep you from losing thousands of dollars you’d otherwise have a right to seek should that copyright be violated. Read on to learn about important deadlines for registering the copyright of your published and unpublished works and your rights to recovery when your copyright is infringed.
Protect your right to seek the damages and fees you’re owed through registration of your work
A copyright is created when the work itself is created; one does not have to register the copyright in order for it to be created or effective. However, there are a number of important reasons to register your copyrighted work with the U.S. Copyright Office and to do so sooner rather than later. For one thing, if you become embroiled in copyright infringement litigation as a plaintiff or a defendant, the date of a registered copyright can be an essential element in proving or defending against an infringement claim.
Another great reason to register a copyright as soon as possible? Ensuring your right to seek attorneys’ fees and statutory damages should that copyright be violated. A little-known section of the U.S. Code covering copyright actions explains that, if a copyright isn’t registered sufficiently in advance of the filing of a claim based on infringement, the party claiming infringement will not have a right to seek statutory damages or attorneys’ fees. 17 U.S.C. § 412 states that, in order to have the right to seek statutory damages and attorneys’ fees in an action for infringement, the copyright for the creative work must be registered within three months of the date of publication, or, for unpublished work, prior to the alleged infringement.
According to 17 U.S.C. § 101, “Publication” means “distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending” or an offer to distribute such copies for further distribution. A public display or performance of a work alone isn’t sufficient to qualify as publication.
What does it mean for my infringement claim if I miss the registration deadline?
Technically, there is a three-year statute of limitations for copyright infringement actions. In other words, victims of copyright infringement have three years to sue after they have learned (or should have learned) of the infringement. However, by failing to register a copyright within the three-month window, many copyright claims may be rendered valueless.
An infringement victim would still have the right to file a claim for copyright violation even if they no longer had the right to seek statutory damages or attorneys’ fees due to the deadline set out in 17 USC § 412. Yet while there might still be a valid claim, the infringement victim would only have the right to seek actual damages and lost profits. Proving these damages can be challenging for many creative works. Actual damages claims need to show such things as a measurable decrease in sales after the copyright infringement began or lost licensing revenue due to the infringement.
In contrast, proving statutory damages and attorneys’ fees is far more straightforward. Statutory damages begin at $750 per infringed work but can amount to $30,000 per work for negligent infringement claims. These damages can rise to $150,000 per work if the victim can prove that the copyright infringement was willful.
Attorneys’ fees also form a substantial portion of the recovery in a typical copyright infringement claim. Copyright claims can be complex and expensive to litigate. It isn’t uncommon for attorneys’ fees to reach into the tens or hundreds of thousands of dollars. These fees are something that federal law justly grants plaintiffs the right to seek from violators rather than being forced to cover, but only when the copyright being protected has been registered within three months of publication.
In order to protect these valuable rights, it is critical to keep your copyright attorney informed of the status of publication of your works. Your attorney can help ensure that your right to seek statutory damages and attorneys’ fees is preserved by registering your work with the U.S. Copyright Office within three months of publication, but only if they’re aware of when the work was published.