- Paul I. Menes
This Should Register With You -- Register Your Creative Works for Copyright
I’m always surprised when I hear people (including some lawyers) say one shouldn’t register their creative works for copyright with the U.S Copyright Office.
To me, the choice is clear -- Yes, absolutely, no question, if that creative work (defined for copyright purposes as dramatic, musical, and artistic works such as poetry, books, movies, TV/streamer programs, songs, recordings, sculptures, paintings, videos, photographs, dance routines (choreography), computer software, fabric designs, blogs, and architecture) is going to be publicly available or public facing, including being posted to social media.
And applying for registration should occur as soon after the work is created and fixed in a “tangible medium” – (it can be read, watched, viewed, or listened to, directly or with the aid of some sort of device). See the forth bullet point below to learn why.
The primary reason some advocate non-registration is because registration isn’t necessary for a work to be "copyrighted". This is because copyright automatically attaches to an original work upon its creation.
So why register?
The Copyright Office is the recognized central depository for copyrightable works. Registering copyrights there creates a public record and “prima facie” (very strong) evidence of copyright ownership in the person or entity listed on the registration. This is important because ownership is often a central issue in disputes over copyrights.
Registration can be a deterrent to copyright infringement. If a potential infringer knows to check copyright registrations, they’re likely not going to use a registered work without permission.
A work owner can’t file a lawsuit for copyright infringement against an infringer, until the U.S. Copyright Office issues registration for it. Just having filed a registration application doesn’t qualify.
A work owner should register their work as soon as possible after it’s created. Why you ask? Because an owner can only get actual damages from the date of registration, not the date of the application. It can take the Copyright Office around six months to issue a registration. The process can be expedited for a fee, if one discovers an infringer and wants to quickly file a lawsuit against them.
The problem with a work owner waiting to apply to register until they discover an infringement is that the major financial damage to the infringed work has likely already occurred, since many creative works’ value diminishes over time. Very little actual damages (lost profits, licensee fees) may accrue once infringement is discovered.
The work owner has the ability to seek statutory damages (they’re set by law, and can be high if the infringement is intentional).
If the work owner wins, the court can order the infringer to reimburse their attorneys’ fees and costs. Another strong disincentive to infringement.
It’s easy and very inexpensive to register. One doesn’t need a lawyer. It’s done online with the U.S. Copyright Office (www.copyright.gov). It takes about 20 minutes to prepare and file the application, and there are good tutorials and other help on the site. It costs $65 for most works, and multiple works can sometimes be registered on one application. If one needs the help of an experienced copyright lawyer (like me) with an application, the legal fees shouldn’t be more than $500.
If an owner is going to sell or license their work, the buyer or licensee will almost always require proof of ownership, including chain of title (if the work has passed through multiple owners or licensees). There’s no better proof then the records of the US. Copyright Office.
Are there any reasons not to register works for copyright? Maybe one – if the current version of a work won’t be the final one.
If significant changes are likely to the original work, an owner may not want to register earlier versions, especially if they won’ be publicly available or public facing. It would then make more sense to wait until the final version is created and register it.
However, If only minor changes are anticipated, registering the original version could suffice to protect both the original and any subsequent versions.
Shakespeare would probably put it “To register or not to register, that is the question.” I would answer “Yes, Will. Register. 'Tis not nobler to suffer the slings and arrows of infringement”.