The Best $3©.00 You May Ever Spend


by Jon Lee Andersen

In working with creative professionals, I am frequently asked about the need to register copyrights. Most authors, artists and composers are aware of the wisdom of sticking the copyright notice on their works, and seem to feel that this provides them with sufficient protection. The majority seldom complete the process by registering their copyrighted works with the Copyright Office.

I understand that, where there is a great volume of work, the expense could become a burden, even at the relatively cheap fee of $30.00 for non-dramatic works. However, it could also be the best investment an artist or author makes.

Registration of copyrights creates a public record of claims and also provides information concerning those claims. This makes it much easier for someone who might want to use copyrighted work to know whom to contact and deal with, in order to obtain appropriate rights for such use. But the real kicker is the impact registration has on the following three aspects of a claim: (1) commencement, (2) damages and (3) attorneys' fees.

First, to even begin a suit for copyright infringement, registration (or at least an application for registration) of the infringed work must be made. It is possible to register a work after infringement is discovered, but as discussed below, it is far better to have registered it beforehand, because of the rather dramatic impact on the damages in the case. And damages, after all, are what claims and lawsuits are all about.

The problem is, damages to a plaintiff in copyright cases are usually quite difficult to establish. There is certainly the insult factor, but the law is pretty stingy about insults, preferring to deal with economic issues. So, yes, stealing is bad, but the court will want to know how much of a loss it really caused. The copyright laws allow claimants in infringement actions to collect both the loss they sustained from the infringement and the profits the defendant garnered from the infringement where they are not duplicative. Proving these, however, has been described by one court as being fraught with "fiendish difficulties."

Ah, but there is a slightly easier path, known as "statutory damages." These are damages established by the court in infringement cases, and damages can range between $200 for innocent infringement up to $150,000 when the infringement is determined to have been willful. Where the infringement is neither innocent nor willful, the range is established with a low of $750 to a high of $30,000, with the amount at the discretion of the court.

Courts historically are more willing to award damages within the permitted ranges upon less evidence, and even upon different evidence, than where actual dollar losses and profits must be proven by legally admissible evidence. Evidence the court will consider in making an award includes the fair market value of the rights infringed, any revenue lost by the copyright owner, the infringer's state of mind and the need to deter future infringement. Statutory damages are, however, assessed on the number of works infringed, not on the number of infringements of a work.

Finally, also important is the potential award of attorneys' fees. Because copyright infringement cases are normally quite expensive to prepare, bring and ultimately to try, very large attorneys' fees are the norm for this type of litigation. Copyright law permits the court to award attorneys' fees to a successful litigant. The amount is discretionary, but courts are not unaware of the expenses incurred in bringing a successful copyright infringement case.

Now for the significant point of all this discussion: statutory damages and the award of attorneys' fees can be awarded to a plaintiff only if he or she has registered the infringed work in a timely manner. What a great incentive! Which, of course, is exactly what Congress had in mind: a classic carrot (damages and attorneys' fees) and stick (registration requirement) strategy to encourage the prompt registration of copyrights.

So to those readers who work on the creative side of life, I would encourage you to follow that roadmap Congress has established. If it is an important work, register it and do it before publication.

To put it another way:

Big Jim took pictures at stock car races

Which he then registered on a regular basis

He was heard to exclaim

In an infringement claim