of Copyright:
Keeping Your
Protection
“Almost every day an artist calls my office with a 100%, knock-down, dead-on, can’t lose copyright infringement case and I have to tell him it’s not worth his while. Even when there’s no question that the artist owns the rights and that someone reproduced his image without authorization or exceeded the license agreed-to -- and even when the infringer admits the infringement--I still turn down the case. Why? Because the artist hadn’t registered with the Copyright Office of the Library of Congress prior to the infringement.”
Registering your copyright with the U.S. Copyright Office is required before an infringement suit can be filed in court and if registration is made within 3 months after publication of the work and prior to an infringement of the work for a published work, or prior to the infringement for an unpublished work, the court has the discretion to order the infringer to pay your attorney’s fees, (if, of course, you win,) and to award you statutory damages as an alternative to an award of your actual damages and profits.
- Statutory damages are an amount of money between $500 and $20,000 awarded at the discretion of the court for each incident of infringement. These amounts may
be decreased to $200 if the court believes the infringement was “innocent”, or increased to $100,000 if the infringement was deliberate and willful. The
court also has the ability to issue injunctions against the infringer to prevent additional infringements, and to impound and dispose of the infringing items.
- Actual damages and profits are the amount of money that you lost due to the infringement, (your usual licensing fee for the work or works infringed,) plus profits, (the amount of money the infringer made by using your work.)
While the Copyright Act permits one to pursue either actual damages and profits or statutory damages (you can’t go for both), there are many situations in which pursuing statutory damages is likely to result in a higher recovery. Actual damages and profits can be difficult to compute, and the infringer can be counted on to argue that the artwork was worth very little, so damages should be low even though the infringement was blatant and willful. Statutory damages permits a court to deal with such an infringer in a meaningful fashion. Moreover, while for registered works the court has the discretion to award attorneys’ fees to the prevailing party, the court does not have the discretion to award attorneys’ fees to the artist if the work was not registered at the time of the infringement (unless registered within the three (3) month window for published works). Failure to timely register can cripple any prospects of redressing an infringement by denying the artist both a potentially attractive avenue for damages and the possibility of recovering attorney’s fees from the infringer.
Many artists and authors lack the means to finance a prolonged infringement suit, and therefore require legal representation on a contingency basis. Where a work is registered as described above, there are more options for recovery, and accordingly the case is much more attractive from an attorney’s perspective for a contingent fee representation.
Remember, you have to register your work anyway before you can bring suit against an infringer. All that results from failing to register in a timely fashion is the loss of you ability to pursue statutory damages and attorneys’ fees. One cannot overstate the importance to an artist of prompt and regular registration with the Copyright Office of all works.
You can register a copyright at any point within the life of the copyright, and that includes what is known as an “expedited” registration, after an infringement has occurred, but before going to court. But expedited registrations cost $330, (as opposed to the ordinary $20 charge,) and you do not have the right to ask the court to force the infringer to pay your attorney’s fees if you register after the infringement has occurred.