If you want your copyrights to be enforceable through the courts, having real teeth to take a proverbial bite out of any infringers, then there is an important “deadline” you shouldn’t miss. Under U.S. law copyrights in an original work of authorship (e.g. artwork, computer program, written material, photographs, music etc.) are created and vest immediately as soon as the author of the work fixes the work of authorship in a tangible medium of expression. But while copyrights are created and vest immediately, under U.S. law they can’t be enforced through the courts until they are registered with the U.S. copyright office.
Strictly speaking there is no “deadline” for being able to file an application to register copyrights. However, waiting to file an application for registration until after infringement occurs has a very significant impact on the remedies that are available when enforcing the copyrights against an infringer: This limitation on available remedies will in turn affect the value of copyrights to the owner. The subject of this article is the effective “deadline” for registering copyrights in order to preserve all of the remedies available for infringement under the law, and hence maximize the value of copyrights.
In the United States the courts will not allow a copyright infringement lawsuit until the work of authorship has been registered with the U.S. Copyright Office. The good news is that an application for the copyright registration of a work of authorship can be filed at any time after creation of the work of authorship. This means that a copyright owner can register the work of authorship with the U.S. Copyright Office in order to bring a lawsuit against an infringer even after it discovers the infringement.
However, by waiting until infringement commences to seek registration a copyright owner may be giving up very valuable legal rights in its copyrights. Specifically, under U.S. law the remedies that will be available to a copyright owner for infringement of the copyrights in a work will be severely curtailed if the owner fails to register the work with the U.S. Copyright Office by certain “deadlines”.
There are a number of remedies available to copyright owners under U.S. law for proven infringement of their copyrights. With respect to monetary relief, in general an infringer of copyright is liable for either:
- The copyright owner’s actual damages and any additional profits of the infringer; OR
- statutory damages.
In addition, the court in a lawsuit for copyright infringement may also award a reasonable attorney’s fee to the prevailing party as part of the costs.
A copyright infringement lawsuit can be very expensive. The recent median cost ranged from $250,000 to $1.2 Million depending upon the amount at stake. A substantial portion of this can be from just proving actual damages, or what the profits of an accused infringer were. Statutory damages can eliminate the need for this. So, the availability of statutory damages as a remedy can be a big savings to a copyright owner.
If a copyright owner elects to receive statutory damages the amount received will be in the discretion of the court. There are a number of factors that courts consider in arriving at the amount of statutory damages to award. A court’s discretion in making a statutory damages award is limited by statute, but ranges from $200 for an innocent infringement up to $150,000 for a willful infringement for each work of authorship that was infringed.
The availability of statutory damages can help make a copyright infringement action viable. However, the attorney fees for issues other than damages can still be enormous. Fortunately, under U.S. law if the copyright owner is the prevailing party in a lawsuit, then the court may award reasonable attorney fees.
So, the availability of statutory damages and attorney fees can be very important to the effective enforcement of copyrights. However, these valuable remedies can be lost if certain deadlines are not met.
To avoid losing the right to collect statutory damages and attorney fees for most works of authorship it is important that a copyright owner be aware of the following deadlines:
- For an unpublished work statutory damages and attorney fees will not be available for any infringement that commenced before the work was registered
- For a published work statutory damages and attorney fees will not be available for any infringement that commenced after the first publication of the work and before the work was registered, unless the registration was made within three months after the first publication of the work.
“Publication” of a work is the distribution of copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending. A public display of a work does not of itself constitute publication.
Thus, to ensure the availability of statutory damages and attorney fees, as well as the ability to bring a lawsuit quickly, any work of authorship having significant value to a business should be registered with the U.S. Copyright Office before there is a possibility of an infringement: As long as registration happens before infringement commences the valuable remedies of statutory damages and attorney fees will be preserved.
This means setting up systems to identify and monitor the creation of valuable works of authorship that the business will want to protect; controlling the creation, use and publication of any copies of such works; and ensuring that such works are properly registered with the U.S. Copyright Office as soon as possible after their creation. This will all help minimize the risk of an infringement occuring before registration, and the loss of statutory damages and attorney fees.
Copyrights in a work of authorship arise automatically upon fixation of the work in a tangible medium of expression by the author. However, those copyrights can’t be legally enforced in the U.S. through a lawsuit against an accused infringer until they have been registered with the U.S. Copyright Office.
There is no deadline for copyright registration. However, failure to register a work of authorship with the U.S. Copyright Office before an infringement commences can mean the loss of the right to seek statutory damages and attorney fees. The loss of these valuable rights can significantly affect the economic viability of being able to bring a lawsuit to enforce the copyrights.
Accordingly, to maximize the value of copyrights in a significant work of authorship a business should take steps to ensure that the work is registered with the U.S. Copyright Office as soon as possible after its creation and before any infringement of the work could commence.