Copyrights: Register Early, Register Often

We frequently receive questions about copyright registration. Sometimes the question is focused directly on the registration process itself, and sometimes it’s more tangential, such as when an artist or entrepreneur needs to enforce their rights against infringers. This article is meant to serve as a primer and jumping off point for anyone who has artistic works they want to protect.

What is a copyright and where do they come from?

There is often confusion as to the types of content covered by copyright, as opposed to trademark or patent. Trademarks protect words or logos that are used to denote a source of goods or services in the marketplace, while patents protect novel inventions and processes. Copyrights protect artistic expression that has been fixed in a tangible medium of expression. Of importance here is that copyrights spring into existence at the moment the work is fixed, which can be easily understood as putting paint on a canvas, transcribing a musical composition, creating an audio recording, or recording video. These are just a few examples of the many ways the “fixation” requirement is met by content creators.

Why does copyright registration matter?

If copyright subsists at a work’s creation, what’s the point of registration? Registration confers a number of additional rights that can be of tremendous importance.

First, and perhaps foremost, holding a valid copyright registration is an absolute requirement to file a copyright infringement lawsuit in federal court. Until recently, some courts were allowing suits to proceed while an application for copyright was in process, while others were following the letter of the law and requiring a completed registration. In 2019 the Supreme Court of the United States took up the matter and ruled that to bring suit for copyright infringement, a plaintiff must have a registered copyright. The full text of the court’s opinion in Fourth Estate Public Benefit Corp. v. Wall-Street.com can be found at https://caselaw.findlaw.com/us-supreme-court/17-571.html.

The Supreme Court’s ruling is significant because of the time it takes to obtain a registration. At the time this article was written, receiving a registration certificate can take six months or more from the date the application is deposited with the United States Copyright Office. Applications for registration can be expedited, but the U.S. Copyright Office charges $800 to do so. For an artist or entrepreneur whose hard work has been misappropriated, a delay in justice can be monumentally frustrating.

Second, having a valid registration issued before an infringement (or within three months of the commencement of the infringing acts) opens up the availability of statutory damages and the potential for recovery of attorney fees and cost of suit. The default damages provision for copyright infringement is actual damages to the plaintiff or the defendant’s profits derived from the infringing acts. Either of these damage categories can be difficult to determine, such as cases where infringers work to hide the scale of their infringement, or might be too low by themselves to warrant the cost of filing and litigating a copyright infringement claim. Statutory damages shortcut the proof required and allow the court to award between $750 and $30,000 per work infringed or, in cases of willful infringement, up to $150,000 per work infringed. Having these options available provides significant leverage when making demands of infringers to cease their activities and provide compensation for their acts.

Where do I register copyrights?

In the United States, everything related to copyright registration is controlled by the United States Copyright Office. Their website is located at https://www.copyright.gov. The Copyright Office’s website provides a deep pool of resources to content owners, including an online application portal, PDFs of application forms for applicants that want to go that route, searches of copyright records, and a series of FAQs, known as circulars, which cover a broad range of topics relating to not just the application process, but to ownership, licensing, and other topics as well.

Conclusion

The Copyright Office’s application fee for a single work by one author is $35, which is a small price to pay for the benefits of registration. The copyright application process has been set up to be accessible to the average person and the rights conferred for a copyright registration are significant. If you’re a creator or entrepreneur who relies on creative content for your livelihood, registering your copyrights early and often can be very beneficial.

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