What are the Implications for Businesses of the Supreme Court’s Recent Ruling on Copyright Registration?

Tuesday, April 16th, 2019

The Supreme Court recently held you can’t sue someone for copyright infringement until you register your copyright with the federal Copyright Office. How does this ruling impact businesses?

To understand the implications, we must first review basics:

A copyright covers an original expression fixed in a tangible medium. Copyrights typically owned by businesses include website content, computer programs, and advertising material.

You own a copyright from the moment you finish creating the material. Yet, the Supreme Court just held you can’t sue someone for copyright infringement until you apply for and receive a registration from the Copyright Office. Until now, courts disagreed on whether you could sue as soon as you apply for registration or, instead, whether you had to wait until the registration issues.

It takes about seven months to get a registration if you apply through the Copyright Office website but can take up to 15 months if the office raises a problem. The registration fee is $35-$55. Sometimes you can apply for expedited registration, which costs $800. That process usually will get you a registration in about five business days.

This ruling highlights the importance of registering your copyrights to important works when they are first published rather than waiting until copyright infringement occurs. Copyright infringement occurs when someone copies your work without your permission and without a legally recognized excuse, such as fair use to comment on it or criticize it.

You want to have your copyrights already registered so you can go to court quickly to seek an order stopping the infringement. But that need, by itself, doesn’t make it crucial to rush to register what you create. You could always pay the high filing fee for expedited registration.

The main reason why you should register your important copyrights when you publish them is to have a real remedy if your material gets infringed. Generally, if you register your work with the Copyright Office within three months of when you first publish it, or at least before the infringement occurs, you have access to two special remedies.

First, you have the possibility (but not the guarantee) of recovering your attorneys’ fees from the copyright infringer if you win.

Second, you have the possibility of recovering “statutory damages” of up to $150,000 per work infringed even if you can’t prove the extent to which you were damaged.
If you wait too long – over three months after you first publish your work and after the irksome infringement begins – all you can recover are actual damages. Those damages might be your lost sales, or the profits wrongfully earned by the copyright infringer.

Often, those actual damages are incalculable and might be zero. Thus, whether you have access to recover statutory damages and, potentially, your attorneys’ fees may determine whether it’s economically worthwhile pursue your case.

Beware that the copyright-registration process is trickier than it seems. In theory, you could do your own registration on the website of the Copyright Office. The registration forms are short and seem straightforward.

In reality, the questions are ticklish, so it’s easy to make a mistake. The mistakes you make might not stop you from receiving a copyright registration, but you may sew errors into your registration so that it won’t work for you later when you use it to confront an infringer. Work with a copyright attorney to file registration applications, at least to get the initial filings right if you will be making repeated filings of the same type.

Written on April 16, 2019

by John B. Farmer

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