There’s an old saying that the law won’t help those who sleep on their rights. The Copyright Act embodies this idea by rewarding those who timely register and, in a way, punishing those who don’t. Your registration is timely if it’s done within three months of your work’s publication or before an infringement commences. The biggest bonus for registration is that you get the right to sue. Remember our post about making a federal case of an infringement? Well, if you don’t register your copyright you have no right to sue in federal court. And federal court’s the only place you can sue. Your power to bring a lawsuit is what makes your copyright a right.
But instead of thinking of registration as a path to litigation, let’s think of it as a path to legal empowerment.
It’s worth noting that having access to the courts to assert a right isn’t just about copyright. It’s pretty much what keeps us all together in (relative) harmony. If you own a home, you know no one can come and just take it away. That can’t happen without a court process, evidence, and a clearly recognized legal obligation. Similarly, do you trust that your employer will pay you? Sure, they have in the past, but if for some reason they didn’t, you could bring a claim and the law would make them pay. Even if you’ve never filed a lawsuit in your life, the existence of your legal rights backstops nearly every aspect of your day-to-day living.
So when we’re talking about copyright giving you a right to sue, it’s really about looking at the reality of dealing with an infringer who might want to use your work without your permission. It’s pretty much up to you to protect your work. If you discover that someone has copied your work you’re going to want to have the maximum amount of bargaining power in the situation. If you’ve already registered your copyright—in other words you’ve timely registered—then telling the infringer this lets them know that their potential legal pain is much, much greater.
Here’s the difference. The cost of litigation can very quickly exceed the amount of money “in play” with infringement. If you haven’t registered your work and decide that you really, really need to stop someone’s illegal use of your work, you’re going to need to register anyway. But because the infringement is already underway, you get none of the benefits of timely registration. So, now instead of paying $35 for a registration, you’re going to want it done quickly, tacking on a “special handling” fee of $800. And to collect any money from the thief you have to prove how much the thief has profited from using your work and how much you’ve lost. This involves collecting a bunch of legal evidence through litigation discovery and possibly even having to hire a pricy expert, all of which can cost thousands of dollars. On the other hand, if you’ve timely registered, then not only do you avoid expediting fees, to collect damages, you only need to prove infringement, not actual loss. The judge can decide on a “just” sum, ranging from $750 to $30,000 per work, and a lot higher where the infringement is “willful,” (or in non-legalese: creepy and done with full knowledge). An infringer can thus end up paying a lot more than the actual money damages caused by their infringement. Perhaps most potent of all, though, is that if you’ve timely registered your work, the judge can award you attorney’s fees, but if you haven’t the judge can’t. With lawyers charging from $250 to $500 an hour, the threat of a fee award is a big deal.
So think of your timely copyright registration as the proverbial big stick, a really powerful weapon that you don’t have to use. And to a potential infringer, knowing that the work they’re eyeing is registered with the copyright office could be all the deterrent needed.
In future posts, we'll share some tips for prioritizing your registrations and making the whole process as inexpensive and painless as possible. Do you regularly register your copyrights? If not, let us know what the hurdles are for you.
Please remember: The information provided on this blog and throughout our website is intended for general educational purposes only. While some information on this site relates to the law as a topic, it's not intended as a substitute for legal advice. Only a lawyer, selected by you and fully informed of the facts relating to your particular situation, can render legal advice.