Register Copyrights to Gain Leverage in Copyright Disputes

Copyright protects original works of authorship fixed in a tangible medium of expression. 17 U.S.C. §102(a). “Originality” and “authorship” require independent creation and a modicum (i.e. minimal level) of creativity. “Fixation” requires that a work be fixed in a tangible format in which it can be perceived, reproduced or communicated, either directly or with the aid of a machine or device — for example, a writing, recording, photo or video.

Copyright protection exists upon fixation of the work — neither registration nor notice is required. Registration, however, provides important benefits.

First, a copyright registration made before or within 5 years of first publication of a work is prima facie evidence of the ownership and validity of the copyright and of the facts stated in the certificate of registration, thereby shifting the burden to the challenger to prove the copyright’s invalidity. 17 U.S.C. §410(c).

Also, registration (or, in some jurisdictions, submission of an application to register copyrights) is required before a copyright claimant can institute a legal action for copyright infringement. 17 U.S.C. §411(a).

Most important, however, is that copyright registration is a prerequisite to certain remedies for infringement, including attorneys’ fees and statutory damages of up to $150,000. 17 U.S.C. §412. A prevailing copyright claimant is not entitled to statutory damages or attorneys’ fees unless he or she has registered the copyright to a work prior to the time the infringement takes place.

One exception allows such recovery when registration occurs within three months of first publication of a work, if infringement occurs during that three-month period.  17 U.S.C. §412.

It is important to note, however, that attorneys’ fees are always available to a prevailing defendant under 17 U.S.C. §505.

The standard measure of copyright damages is the infringer’s profits and the owner’s actual damages. 17 U.S.C. §504(a) and (b). However, the owner may not be able to prove actual damages or profits on the part of the infringer, and the cost of the action may preclude the owner from suing.

On the other hand, if the registration requirements have been met, a claimant can elect statutory damages in lieu of actual damages and profits and recover from $750 — $30,000 for a non-willful infringement of a work, and up to $150,000 for a willful infringement of a work, as the court deems just in its discretion. A court also has the discretion to reduce an award of statutory damages to $200 for an innocent infringement of a work. 17 U.S.C. §504(c).

Applications for copyright registration are made to the United States Copyright Office, and may be filed on-line at Most on-line applications require a filing fee of only $35.  The examination process for a copyright application is simple and non-adversarial.

Statements made in the application — including those regarding the author of the work — are certified as being correct by the applicant or its authorized agent, and persons who knowingly make false representations of a material fact in an application for copyright registration are subject to a fine. 17 U.S.C. §506(e).  Accordingly, statements in the application regarding the originality of a work and its authorship are taken at face value.  Therefore, if the application covers copyrightable subject matter that reflects a minimum level of creativity, registration will be granted. A Certificate of Registration is generally received within six to eight months of the date an application is filed electronically.

In a copyright infringement dispute, the leverage gained by being able to claim attorneys’ fees and elect statutory damages is well worth the nominal effort and cost associated with registering the copyrights.

If you have questions about registering copyrights or would like assistance with the registration process, Goodell, DeVries, Leech & Dann, LLP can help.  Contact Donna Thomas, Esq. at 410-783-3522 or