Summary
Even though you a work is technically “copyrighted” from the moment you create your work, if you do not register your work, then your copyright may be worthless. Why is registration so important? A failure to register in a timely manner often presents a monumental obstacle to achieving any meaningful remedy against infringers.
Quite simply, if you register your work on a timely basis, then you have the right under the copyright act to seek up to statutory damages (up to $150,000 per willful act of infringement) and your attorneys’ fees if anyone uses your work without permission. Timely registration also makes proof of ownership and infringement easier should you ever need to pursue legal action.
Proper registration provides the creator of an infringed work 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. Statutory damages add up quickly, and courts assess 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 damages award. The threat of recovering both attorneys’ fees and
statutory damages is critical in leveraging a quick and effective settlement
against infringers.
The Benefits to Registration
1. 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.
2. Prima Facie Evidence of Copyright Validity: Registration of your copyright within five years of the date of first publication “shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” Timely registration therefore provides a presumption of copyright validity that makes it easier to prevail on an infringement claim.
3. Statutory Damages: Federal law provides two types of damages for copyright infringement: (1) actual damages and infringer’s profit and (2) statutory damages.
a. 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 been 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.
b. 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.
4. Attorneys Fees:
a. 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 2005 American Intellectual Property Law Association’s Economic Survey, the median cost of pursuing even a small-scale copyright infringement suit is approximately $250,000. 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.
b. 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 meaningful 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.
5. Registration as a 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 attorneys fees rather than later when you will be eligible for neither?
To Register or Not to Register: An Example
Let’s say a pharmaceutical company features five of your illustrations, without permission and much to your chagrin, on the packaging of their new male enhancement drug. Without proper registration, you can only recover actual economic damages (your fair market licensing rate) against the company. Unless you are world-renowned, your damages claim will amount to a few thousand dollars. But pursuing an infringement suit will cost you several hundred thousand dollars in fees. Even under the most optimistic scenario, a suit may not be worth filing: you may receive $5000 from the defendant, but a $250,000 bill from your attorney. Knowing this, a company will likely ignore your threats and continue infringing your work.
With proper registration, however, the outcome is vastly different. The defendant faces potential statutory damages in the amount of $750,000 ($150,000 for each of five acts of infringement) 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, you will notice the company taking your lawsuit very seriously.
The lesson is simple: register your works. It is the cheapest insurance you can find against infringement.