Register Your Copyright Before You Register Your (Infringement) Complaint
There have been several high-profile copyright infringement lawsuits filed in the last few years. Marvin Gaye’s estate sued Robin Thicke and Pharrell Williams, for allegedly appropriating some of Gaye’s famous song “Got to Give It Up”, into their big hit, “Blurred Lines”.
Bruno Mars and Mark Ronson were sued twice, over their hit “Uptown Funk” (which had been certified 11 times platinum, and held the number 1 position on Billboard’s Hot 100 for 14 consecutive weeks).
One suit was filed last year by Minneapolis electro-funk band Collage. Another was filed two months ago, by the copyright owners of the legendary funk group Zapp’s 1980 song “More Bounce to the Ounce”. Each suit claims that “Uptown Funk” contains substantial portions of each plaintiff’s recording.
These lawsuits have one thing in common – the party claiming infringement knew to register their works with the U.S. Copyright Office, before any infringement occurred.
“But, wait”, you may be saying, “doesn’t copyright attach to an original work upon its creation? One need not register their work, for it to be copyrighted, right? So, isn’t that work already protected?”
You’d be correct. So, why bother with copyright registration?
Here’s why — one can’t sue someone for infringing their work, and potentially collect money and other damages, including attorneys’ fees, from them, unless they’ve registered that work with the U.S. Copyright Office.
(In service of this, you need to know that there’s disagreement among some federal courts, which have exclusive jurisdiction over copyright infringement claims, as to whether registration is necessary to file an infringement lawsuit, or if just applying for registration is enough. And, some haven’t yet decided if they require registration, or just application).
So, register copyrights as soon as a work of original authorship has been created, by you alone or with others, so the owners can protect it from infringers, and to obtain the several benefits and advantages registration allows. Don’t wait until you believe someone’s infringed that work. You don’t want to take the chance that merely applying is enough, if it isn’t in the federal district court in which you must file your infringement lawsuit.
But, there’s an even more important reason for registering for copyright as soon as possible after a work is created. The owner of a registered work can only collect money damages, from the date of registration. Many owners wait to register with the Copyright Office, until they believe they’ve been infringed.
The effect of late registration can deprive the owner of most of the monetary damages that would otherwise have been available for infringement. All that an owner can then collect if they win their infringement suit, is whatever damages occurred after the date of registration. By that time, the major financial damage to the infringed work, and its owner(s), has likely been done, since most creative works, as well as works infringing them, have a relatively short shelf life. There may be very little actual damages still occurring or accruing, once the infringement is discovered.
You also need to know that it can take the Copyright Office about a year to process an application. Even expedited registration, which unlike regular registration, is expensive, can still take several weeks.
You don’t want to be in the situation where you discover you’ve been infringed, your damages and losses are mounting, but you can’t do anything about it, until the Copyright Office works through their backlog of registration applications, and you receive yours.
Besides, there’s no reason not to register a work for copyright:
It’s easy — it can be done online at www.copyright.gov. Click on the “Registration” link.
It’s quick – takes maybe 20 minutes.
It’s inexpensive – usually $35 or $55 to register. Multiple works can be registered with one application.
And, you can do it yourself! Most of the time, you don’t need a lawyer to register a copyright. (Yes, you heard right. The Registration portal is designed for non-lawyers).
Here’s what I think are the most important rights and benefits copyright registration conveys on a work’s owner(s):
- The ability to file a copyright infringement lawsuit in federal court, which as I mentioned above, has exclusive jurisdiction over copyright infringement claims;
- The ability to sue for statutory damages, instead of having to prove actual damages suffered by the infringement. This can be very beneficial if an infringer is uncooperative, and won’t provide information regarding their sales and profits from the infringement. In awarding statutory damages, judges have wide latitude to award an amount they believe is appropriate for the infringement committed. The range of statutory damages are set by federal law, and can go as high as $150,000 per intentional infringement.
- The ability for the infringed party to collect their attorneys’ fees and costs. This ability often results in a quick settlement. No sane infringer wants to be potentially on the hook for, not only the damages the infringed party suffered, but also for the infringed party’s attorneys’ fees, on top of their own attorneys’ fees.
- Reciprocal benefits in some foreign countries.
The primary reason people create works, is to share them with others, usually with the expectation of making money doing so. Popular works, be they movies, music, art, books, TV or other programming, choreography, or software, can generate huge sums of money for their creators.
But, a lot of that money can wind up in the pockets of infringers, unless the original work’s owner(s) have taken the necessary steps to protect their valuable work. Early copyright registration is both the strongest, and most ridiculously cost-effective, protection out there.
So, spend the 20 minutes and around $50 to register your works, as soon as they’re created.
The only thing worse than getting ripped off, is the inability to punish the guilty, and make them pay for the damages they’ve caused you and your work.
No Blurred Lines here. Don’t let infringement Uptown Funk you up. Register for copyright as soon as your work is created, so you don’t Got to Give It (damages and attorneys’ fees) Up, if someone infringes your work.
Just Sayin’ . . . TM
© 2017 Paul I. Menes
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