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Why Register Your Works?

Copyright registration provides significant benefits, including:

How does copyright registration increase the value of my work?

Even though a work is technically copyrighted from the moment it's fixed in a tangible medium, if you do not register your work, then your copyright may be worthless. If you fail to register your work in a timely manner, you will often be presented with a monumental obstacle to achieving any meaningful remedy against infringers.

Proper registration will provide you with two powerful weapons: attorneys’ fees and statutory damages of up to $150,000 per willful act of infringement. Usually, parties bear the costs of their representation, regardless of the outcome. However, prevailing plaintiffs in copyright infringement suits are eligible to receive their attorneys’ fees if the work was timely registered. Moreover, a plaintiff can usually only recover the actual damages. For copyright infringement, such damages are often speculative, small, and difficult and expensive to prove. However, timely registration qualifies an artist for statutory damages of up to $150,000 per willful infringement. Statutory damages add up quickly, and courts award them without any proof of actual harm.

Attorneys’ fees and statutory damages are critical tools in the war against infringement. Lawyers and litigation are expensive. The average copyright infringement trial costs several hundred thousand dollars. By qualifying for attorneys’ fees and statutory damages, however, you will not only have an easier time convincing an attorney to take your case on a contingency-fee basis, you will also substantially increase the potential judgment facing an infringer. Infringing defendants caught red-handed are likely to settle a case quickly rather than run the risk of paying their attorney, your attorney, and a hefty statutory damages award. The threat of recovering both attorneys’ fees and statutory damages is critical in leveraging a quick and effective settlement against infringers. Don’t miss out on these amazing benefits. A couple hundred dollars now can save and even make you thousands of dollars in the future!

What are the benefits of copyright registration?

Proof of Creation

Registration provides inconvertible proof that your work was created by a certain date. This benefit to registration becomes critical in a suit where the defendant claims that she could not have possibly infringed your work since she created her work first. Rather than engaging in a costly battle of “he said/she said”, your registration will be your proof.

Evidence of Copyright Validity

Registration of your copyright within five years of the date of first publication is evidence that your copyright is valid. Timely registration therefore provides a presumption of copyright validity that makes it easier to prevail on an infringement claim.

Statutory Damages

Federal law provides two types of damages for copyright infringement: (1) actual damages and infringer’s profit and (2) statutory damages.

Actual damages and infringer profits are available to any prevailing plaintiff in an infringement suit. However, they are often difficult to prove. Since copyrights are a species of intellectual property, their inherent intangibility makes it difficult to ascertain with precision how much damage an infringement has done to the value of a work. The calculation of infringer profits is also complicated and subject to a multitude of vagaries. Moreover, courts routinely reject recovery of any actual damages or infringer’s profits that they deem too speculative in nature.

Statutory damages are ONLY available to plaintiffs who have properly registered their works prior to the infringement or within ninety days of the first publication of their work. They require NO proof of damages and a plaintiff can recover up to $150,000 per act of willful infringement. Statutory damages can add up quite quickly. As a result, eligibility for statutory damages is critical in leveraging a quick and effective settlement against infringers of your work.

Attorneys' Fees

With a timely copyright registration, you may not have to worry about paying attorneys to fight for you. Instead, the other side may have to pay your attorneys.

The default rule in U.S. courts is that parties bear their own costs in litigation, regardless of the outcome. Thus, even when you sue someone in court and win, you are ultimately responsible for your attorneys’ fees. This can make it difficult for anyone but the wealthiest of plaintiffs to pursue a case of copyright infringement against even the most egregious of infringers. According to the 2009 American Intellectual Property Law Association’s Economic Survey, the median cost of taking a middle-of-the-road (a case involving $1-25 million in potential liability) copyright infringement case to trial in Southern California is approximately $1,200,000. So, if someone infringes your copyright and causes $200,000 in damages to you, it may not be worth pursuing that case even when the defendant’s actions are clearly unlawful. In the best-case scenario, you might win at trial, receiving a $200,000 judgment in your favor. Yet, at the end of the day, you will still be $50,000 in the red when attorneys’ fees are taken into account.

The Copyright Act, however, has a critical fee-shifting provision that enables prevailing plaintiffs to recover their attorneys’ fees from infringers. But you can only recover attorneys’ fees if your work is properly registered before the infringement occurs or if you register the work within ninety days of its first publication. So, to meaningfully equip yourself with the ability to pursue anyone who infringes your copyright, it is critical that you register your copyright and do so properly and on a timely basis.

Prerequisite to an Infringement Suit

To sue for copyright infringement, you have to register your copyright anyway. Generally, no action for the infringement of copyright in any work shall be instituted until registration of the copyright claim has been made. Why not do it now and be eligible for statutory damages and the piece of mind in knowing you're protected?

It’s the cheapest insurance you can find against infringement.

Let’s say a pharmaceutical company reproduces five of your illustrations, without permission and much to your chagrin, on the packaging of their new male enhancement drug. Without proper registration, the recovery available to you is significantly limited. As the owner of an unregistered copyright you may only be awarded actual damages (i.e. your fair market licensing rate for illustrations) and infringer's profits (the ill-gotten gains received by the company attributable to their unlawful use of your work). Unless you are a world-renowned artist, your actual damages claim will likely amount to no more than a few thousand dollars - but it get's worse. The attorney's fees you will have to pay to prove infringer's profits can easily be in excess of several hundred thousand dollars. Even under the most optimistic scenario a suit may not be worth filing because receiving a $5,000 judgment against the company does not merit the $250,000 bill you may receive from your attorney. Knowing this, the pharmaceutical company will likely ignore your threats and continue infringing your work.

With proper registration, however, the outcome is vastly different. Timely registration affords the copyright holder an additional recovery option: statutory damages. Statutory damages can give an otherwise futile case teeth. Back to our hypothetical, the defendant pharmaceutical company, who only faced a $5,000 actual damages judgment absent timely registration, now faces potential statutory damages in the amount of $750,000 ($150,000 for each of five works infringed) and liability for your attorneys’ fees (and its own). With a realistic chance at judgment in excess of $1 million, you will not only have no trouble finding an attorney to take the case, you will also notice the pharmaceutical company taking your lawsuit very seriously.

The lesson is simple: register your works.

Registrations Gone Wrong: Real Life Mistakes

While there may be no such thing as a mistake in art, the same cannot be said for copyright registrations. Mistakes happen, and the consequences are drastic. The cases below reflect the disastrous consequences of registering a copyright the wrong way. Don’t let this happen to your artistic creations. Register, and register right.

In a copyright infringement suit involving the rock band Nirvana, a federal appeals court invalidated a registration due to a mistake in the copyright application process. Racquel v. Education Management Corp., 196 F.3d 171 (3d Cir. 1999).

In a copyright infringement suit involving the Beavis and Butthead characters from MTV, a federal appeals court invalidated a registration because of a mistake in the copyright application process. Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998).

In a copyright infringement suit involving popular Halloween outfits, a federal appeals court invalidated the plaintiff’s copyrights because of a mistake in the registration forms. Whimsicality, Inc. v. Rubie’s Costume Co., Inc., 891 F.2d 452 (2d Cir. 1989).

Don't risk the protection of your creative work. Let an experienced copyright attorney help you today.

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