Copyright Registration and Enforcement

How to get maximum protection from federal copyright laws.

Contents

Why should I register my work with the U.S. Copyright Office?

You must register your copyright with the U.S. Copyright Office before you are legally permitted to bring a lawsuit to enforce it.

You can register a copyright at any time, but filing promptly may pay off in the long run. “Timely registration” — that is, registration within three months of the work’s publication date or before any copyright infringement actually begins — makes it much easier to sue and recover money from an infringer. Specifically, timely registration creates a legal presumption that your copyright is valid, and allows you to recover up to $150,000 (and possibly lawyer’s fees) without having to prove any actual monetary harm.

How do I register copyright?

You can register your copyright by filing a simple application and depositing one or two samples of the work (depending on what it is) with the U.S. Copyright Office.

There are two ways to file a copyright application:

file using the online eCO system (currently $35 to $55 per application); or
file using traditional paper forms (currently $85 per application) such as Form TX for nondramatic literary works, including computer programs, Form PA for audiovisual works, Form VA for graphic art and sculptural works, Form SR for sound recordings, and Form SE for serials and periodicals. Copyright forms can be downloaded from the copyright office website (www.copyright.gov).

Note, the fees change periodically. Check with the Copyright Office for current fees.

Ignore Heading – Content

What is PreRegistration?

As a result of legislation in 2005, the Copyright Office has instituted a pre-registration procedure for certain classes of works that have a history of pre-release infringement. According to the Copyright Office, preregistration serves as a place-holder for limited purposes, mainly where a copyright owner needs to sue for infringement while a work is still being prepared for commercial release. Preregistration is not a substitute for registration, and its use is only appropriate in certain circumstances. A work submitted for preregistration must meet three conditions: (1) the work must be unpublished; (2) the work must be in the process of being prepared for commercial distribution in either physical or digital format—that is, film copies, CDs, computer programs to be sold online—and the applicant must have a reasonable expectation of this commercial distribution, and (3) the work must fall within the following classes of works determined by the Register of Copyrights to have had a history of infringement prior to authorized commercial distribution. The works determined to be eligible under this requirement are motion pictures, sound recordings, musical compositions, literary works being prepared for publication in book form, computer programs (which may include videogames), advertising or marketing photographs. Preregistration is not a form of registration but is simply an indication of an intent to register a work once the work has been completed and/or published. When the work has been completed, it may be registered as an unpublished work, and when it has been published, it may be registered as a published work. A person who has preregistered a work must register the work within one month after the copyright owner becomes aware of infringement and no later than three months after first publication. If full registration is not made within the prescribed time period, a court must dismiss an action for copyright infringement that occurred before or within the first two months after first publication. To preregister, a copyright owner must apply online; no paper application form is available. The effective date is the day on which the completed application and fee for an eligible work have been received in the Copyright Office.

Ignore Heading – Content

How are copyrights enforced? Is going to court necessary?

If someone violates the rights of a copyright owner, the owner is entitled to file a lawsuit in federal court asking the court to:

issue orders (restraining orders and injunctions) to prevent further violations
award money damages if appropriate, and
in some circumstances, award attorney fees.

Whether the lawsuit will be effective and whether damages will be awarded depends on whether the alleged infringer can raise one or more legal defenses to the charge. Common legal defenses to copyright infringement are:

too much time has elapsed between the infringing act and the lawsuit (the statute of limitations defense)
the infringement is allowed under the fair use doctrine (discussed above)
the infringement was innocent (the infringer had no reason to know the work was protected by copyright)
the infringing work was independently created (that is, it wasn’t copied from the original), or
the copyright owner authorized the use in a license.

If someone has good reason to believe that a use is fair — but later finds herself on the wrong end of a court order — she is likely to be considered an innocent infringer at worst. Innocent infringers often don’t have to pay any damages to the copyright owner but do have to cease the infringing activity and sometimes must pay the owner for the reasonable commercial value of that use.