Register Your Copyrights

Last week, the general counsel of a client—a higher learning institution (Original University)—called me in a panic. One of their competitor institutions (Copy Cat College) had knocked off their online merchandise catalog. Copy Cat had issued a catalog that incorporated the look and feel, layout and other significant features of Original’s catalog. The only difference with Copy Cat’s catalog was the name and specific products contained in the catalog. When asked “What can we do,” my first question to Original was, “Do you have a copyright registration for your catalog?” The response was a resonating “Huh?” What I learned from Original is worth sharing.

There appears to be a popular misconception that the only thing that needs to be done to have a copyright is to place the designation © or a notation that “All Rights Are Reserved” on materials for which copyright protection is sought. While that may be true—at least in part—one cannot sue under the federal Copyright Act for infringement unless the copyright is registered with the U.S. Copyright Office.

The Copyright Act permits a copyright owner to sue for infringement and to recover, among other things, statutory damages of up to $150,000 per copyright infringed. Statutory damages are set by the statute in a fixed amount as an alternative to actual damages. Statutory damages are often sought when actual damages are difficult to determine. The Copyright Act also permits the copyright owner to recover actual damages—it is the plaintiff’s choice and, logically, a plaintiff will elect to recover statutory damages if that amount exceeds actual damages.

In addition, the American rule is that parties pay their own attorney fees in litigation. However, as a remedy for infringement, the Copyright Act permits a copyright owner to recover its attorney fees and costs. One cannot recover these remedies without a registered copyright.

In certain jurisdictions, an action for infringement may be brought under the Copyright Act if an application for registration is filed before or at the time of registration. This is what we did in my case—filed for registrations at the time we filed suit. However, without an actual registration, Original cannot seek statutory damages or attorney fees. The remedies are limited to injunctive relief (to stop and prevent further infringement) and actual damages. Thus, it is apparent why registration of your copyright is important.

There are other benefits to registering your copyright. Some of those benefits are as follows:

• The registration is a public disclosure of your copyright; nobody can claim that they were unaware of it.
• If your copyright is registered within a five-year period, the registration is prima facie evidence that the copyright is valid.
• If your work is registered three months after publication and before any infringement occurs, the owner may recover statutory damages and attorney fees and costs in an infringement action brought under the Copyright Act.
• You can file the information on your copyright registration certificate with U.S. Customs and Border Protection to prevent the importation of infringing goods.

Registering your copyright with the U.S. Copyright Office is straightforward and relatively inexpensive. This small step can make all the difference if you have to sue for infringement.