The Benefits of Copyright Registration
Peter Tirella | 09.14.22
After years spent writing your first novel, you are finally ready to reach out to publishers to cash in on your hard work. Since you began shopping your work to a few independent publishers, everything seems to be working out – a few publishers appear interested in your work, your friends in the industry think you can fit comfortably into a market niche, and you’re finally planning a long-deserved vacation. While in negotiations with your chosen publisher, they say that they’ll take every effort to protect your book from potential copiers and fraudsters, including offering to “register” your work with the US Copyright Office (the “Copyright Office”). You may not have heard about the registration process before and are curious as to why you may want to do this, so you ask: what benefits would you gain from registration?
This article introduces and explains the myriad benefits of registering a copyrightable work with the Copyright Office. While this article considers the effects of registration on a hypothetical novel, authors and artists can register any type of copyrightable work, whether it be a drawing, computer code, or a writing.
While an author immediately gains a copyright in their works by virtue of the common law, there are distinct benefits to registering a copyrightable work. These benefits include:
1. Obtaining a public record and presumption of ownership
While you and your friends and family know that you authored your works, it may be difficult for others to know who the real owner of the work may be. By registering your work with the Copyright Office within five years of publication, you immediately gain presumptive evidence that your copyright is valid and that all facts in the copyright registration are true. That means that any person challenging your copyright in court must affirmatively prove these facts to be untrue. This can be a heavy burden to overcome, so this is a relatively valuable benefit.
2. Gaining the ability to file a copyright infringement lawsuit
If you find out that someone is selling bootleg copies of your book or are using your works inappropriately, your first inclination might be to try and sue them for damages. However, you will meet an immediate roadblock if you didn’t register your novel – with certain rare exceptions, it is impossible to file a copyright infringement lawsuit without first registering the work.
Given that the average processing time for copyright registration is about four months, not registering your work at the outset can delay a potential suit and lead to increased damages. While you can request expedited processing for pending litigation or other exceptional circumstances, the associated fees are extremely high (roughly $800.00 per work). Therefore, it may be beneficial to register a work as close to publication as possible to save time, money, and stress in connection with potential litigation, no matter how unlikely it might seem.
3. Unlocking the potential to recover statutory damages and attorney’s fees for post-registration infringement
Imagine the same scenario from Section 2: you find out that someone may be infringing your works and you decide to register your work using expedited processing and then sue them. However, your attorney lets you know that you will have to prove actual damages at trial. Given that you are a new author without a huge market presence, you realize that this could prove difficult and may lead to less compensation than you think is fair. However, this situation could have been avoided by registering your novel immediately following its publication.
If you registered your work within three months of its publication (or before the alleged infringement began), you would have become eligible for an award of statutory damages and attorney’s fees. Statutory damages can range from around $750.00 to $30,000.00 per infringed work. The upper limit could expand to a maximum of $150,000.00 if the alleged infringer did so willfully. Given that litigation is rarely cheap and supporting actual damages can prove difficult, registering your work within three months of its publication is an easy way to ensure that you are able to be fairly compensated in case of infringement.
4. Preventing Importation of Infringing Foreign Works
Imagine a scenario where you learn that someone in a foreign country is importing infringing copies of your novel into the United States and subsequently selling the bootleg copies to retailers. If you registered your works with the Copyright Office, you would have certain rights to combat this infringement.
Registering your novel would grant you the right to participate in the U.S. Customs and Border Protection Program (the “CBP”). The CBP exists to seize and detain imported goods that violate intellectual property rights obtained in the United States. A holder of a registered copyright can participate in the CBP by providing them with product identification guides and training personnel on identifying potentially infringing goods. Participation in the CBP is not mandatory but provides certain benefits for those concerned with the risks of importing infringing works.
Overall, registering a work with the Copyright Office is a relatively inexpensive endeavor, costing roughly $190.00 per work. Compared to the value of the above benefits, registering a work can be a great value both in the present day and long into the future.
Should you have a work you would like to formally register, please reach out to your usual Boardman Clark attorney or any other member of our Intellectual Property practice group.
DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.