By Gary Schuster, Esq.

When a new Copyright Act was passed in 1976, the law abandoned a centuries-old requirement that works of authorship must be formally registered in order to gain copyright protection. Under the new regime, copyright springs into existence from the moment a work is “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.”

The requirement for registration was eliminated because it was felt that it had become an unnecessary formality, and that works ought to be afforded protection without such formality. Even so, registration was encouraged in other sections of the Copyright Act. There remain many good reasons to register works for copyright protection.

First, if a third party unlawfully infringes upon a copyright, the copyright owner may not even bring a legal action unless the infringed work is actually registered for copyright. If an infringement is discovered before registration, it is possible to quickly register the work and then bring the infringement action.

Second, if a work is registered at the time of the infringement, then the following remedies and rights are available to the copyright owner. Conversely, if the work is not registered, these remedies and rights are not available:

1. Costs and attorney’s fees. If a work was registered prior to the infringement, then, if the copyright owner prevails in his litigation, he may recover from the defendant his court costs and reasonable attorney’s fees. This award is not automatic, but is left to the discretion of the court.

2. Statutory damages. Traditionally, the damages caused by infringement have been measured in various ways. A copyright owner could demonstrate his lost sales or lost profits. Or he could try to prove the infringer’s sales or profits. These damages are referred to as actual damages. However, it was recognized that frequently it was unreasonably difficult for copyright owners to prove actual damages because infringers, who were, after all, engaged in illegal activity, typically did not keep scrupulous books and records of their activities. So an alternative was devised called “statutory damages”. Under certain circumstances, the court in its discretion may award a fixed amount of damages for each act of infringement, without the need for the copyright owner to prove actual damages. At present, the amount of damages can be as low as $200 per infringement where the defendant proves that he was not aware and had no reason to believe that his acts were infringing, up to $150,000 per infringement where the defendant is proved to have knowingly and willfully infringed. Statutory damages awards are more typically in a range from $750 to $30,000 per infringement.

In the real world, the fact that a work has been registered prior to infringement gives considerable leverage to the copyright owner and his attorney when confronting a suspected infringer. If the work was not registered, then statutory damages are not available, the copyright owner must prove actual damages, and the financial risk to the infringer is much lower. On the other hand, if the work was registered, then statutory damages are available, and there is a risk of $150,000 per infringement. The copyright owner has a stronger hand in threatening litigation or negotiating a settlement. I have personally experienced this, representing both the copyright owner and the alleged infringer.

Another benefit of copyright registration is “prima facie evidence”. If a work is registered within 5 years of publication, the registration and the facts contained in the certificate are presumed to be valid and true. You do not have to prove them. Instead, your adversary in court has the burden of disproving them. This is a valuable benefit in litigation.

Copyright registration is almost always done online now at www.copyright.gov. The current cost is $35 per registration. Some artists, like photographers, illustrators and poets, may have dozens or even hundreds of works to register. Obviously the cost would be considerable. Fortunately there is a method of registering a number of works in a single application for a single fee. This is called the collection method. It is not the ideal method, because ideally every work would have its own separate registration number. However, if that is not financially possible, this method will secure protection at lower cost. Individual works in the collection can be registered separately later on when funds are available or if circumstances require.