Why does someone need to register a copyright? It’s quite simple. The statute requires that a potential plaintiff must have a copyright registration certificate before walking into court. The Supreme Court affirmed the plain language of the statute in March 2019. It is also better for the types of damages that a plaintiff in a copyright infringement lawsuit can ask the court for.
Registration Required for a Lawsuit
Registration of a copyright occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.
Under the Copyright Act of 1976, as amended, a copyright author gains “exclusive rights” in her work immediately upon the work’s creation. 17 U.S.C. §106. A copyright owner may institute a civil action for infringement of those rights, §501(b), but generally only after complying with §411(a)’s requirement that “registration . . . has been made.”
Registration Required for Copyright Damages\
One of the greatest advantages of registering a copyright pertains to the ability to recover statutory damages and attorney’s fees in a successful action. Given that many infringements costs many thousands of dollars to prove in court yet only generate provable damages of minor amount, the inability to collect significant damages and incurred attorney’s fees for infringement of a non registered copyright may make the difference between a successful action or a Pyrrhic victory.
Here is a lightly-edited transcript of the video:
Hi, I’m Anthony Verna, managing partner of Verna Law, P.C. We focus on Intellectual Property and Advertising Law.
This past week I had a phone call with the judge and the plaintiff in a case where I’m representing the defendant. The plaintiff sued my client for copyright infringement. One little problem though with the plaintiff’s case: the plaintiff does not have a copyright certificate from the Library of Congress. Well, of course that’s a bit of an issue.
Recently as a matter of fact, in March, the Supreme Court ruled that you must have a certificate from the Library of Congress before you start an infringement lawsuit. Now, this has been written in the statute since the Copyright Act has been passed, but a lot of lawyers started to do this little trick of filing the application for a copyright, showing that there’s a number for the application and then filing a lawsuit.
Some judges have accepted that, but the majority of courts have not.
So we had this split in which some judges said the application counts as a registration and some cases in which, of course the application is just that: an application. That split was recently resolved by the Supreme Court.
This isn’t an ideal situation for a plaintiff if your copyright is being infringed. You need to have that copyright certificate for not just being able to walk into court, but also being able to claim extra damages, which we call statutory damages, which are made by the judge and really are punitive in nature as well as the ability to ask for attorney’s fees.
If infringement happens before a certificate is issued, the only damages that plaintiff can ask for is the actual damages of the infringement. So in other words, lost profits.
In order to actually get into court on a copyright infringement suit, you need to have that certificate. And in order to ask for damages that actually make a copyright infringement suit worthwhile statutory damages and attorney’s fees, you need that copyright certificate. Make sure that you’re registering your copyrights before any of this becomes an issue. In other words, right after the finish of the creation of the work.