01 Dec Why Should I File for Copyright Protection?
Under U.S. law, copyright protection is automatic, meaning that as soon as you write down or record your creative work, you have certain rights to this work.
Copyright owners may:
- Reproduce and distribute their work;
- Display and perform their work; and
- Create derivative works.
Even though a copyright is automatic, you will need to register it with the U.S. Copyright Office if you want to stop an unauthorized person from infringing on your rights.
How to Register a Copyright
The copyright registration process is fairly straightforward. You will need to submit the copyright registration form, pay the registration fee, and submit a copy of the work (the deposit) you want to register. You can fill out the registration form online, and fees are as low as $35 for a single work. The full list of fees is available from the Library of Congress at this link.
Registering Your Copyright Allows You to Enforce it
There are two ways to enforce your copyright if an unauthorized person is infringing upon it. You can send a cease-and-desist letter to initiate out of court discussions, or you can file a federal lawsuit against the infringing party.
To pursue either method of enforcement, you work will need a valid copyright registration. In court, this is a requirement of the court filing. If you try to settle the case outside of court, having the threat of a copyright lawsuit will encourage the other party to settle.
Registration also creates prima facie evidence that the facts you list in your registration are true, as long as you register within five years of publishing your work. If someone wants to challenge your ability to enforce the copyright, the burden will be on them to disprove these facts, rather than on you to prove them.
You can Receive More Money in an Infringement Lawsuit
In many civil cases, the purpose of a lawsuit is to put the plaintiff in the same position they were before the injury occurred. If your Honda Civic was damaged in a car accident, you can ask for the amount of money to replace this car, not the amount to buy a Porsche.
Most copyright cases do not require the plaintiff to prove the amount of damages suffered. Instead, the copyright holder may ask for statutory damages, which are set by the Copyright Act.
Statutory damages begin at $750 per work and can go up to $150,000 per work, if the infringement was intentional. Being able to request statutory damages saves the copyright owner from having to prove how much money was lost as a result of an infringement. In the car accident case above, it is relatively straightforward to calculate the value of a damaged vehicle. This is significantly more difficult in copyright cases.
In order to be eligible to receive statutory damages in an infringement case, you must register your work either within three months of publication of the work, or before the infringement starts. In addition to receiving statutory damages, if you register within this time period, you are also allowed to request attorney’s fees and costs. You should note that these awards are not automatic, even if you win your case.
This article does not contain legal advice and is for informational purposes only. If you have questions about copyright protection and litigation, contact Heerde Blum LLP online or call us at (212) 920-5858 or (213) 770-5757.