Copyright First Steps, Part 3: Protecting Your Rights with Copyright Registration.

In Part 1 of this series I revealed that copyright law probably treats you as a creative artist and discussed what works are able to get protection under the law. Part 2 detailed the six exclusive rights granted to a copyright owner, discussed why knowing those rights is important to maximize the value of your work through licensing, and explained how to recognize infringement of those rights.

As I said in that article, copyright infringement is often easy to establish, but actually enforcing your rights can be difficult unless you've taken appropriate steps to protect your work. While you still get some rights under copyright law even if you don't register your work, those rights can be difficult and expensive to enforce without the privileges granted to registered works.

This final article in the series will teach you both the common-sense approach to protecting your work and explain how copyright registration will help you gain the full benefits of the law.

A brief note: For the purposes of these articles, I will only discuss newly created works, specifically those created after March 1, 1989. The rules are different for works created before that date, and if you have any questions about older works you should consult with a copyright attorney.

Step 3: Protect your work with notice and registration.

The first step to protecting your work from infringement involves a common-sense approach: Identify the work as yours, include a copyright notice, and make yourself easy to find. These steps will reduce the chances that someone will steal your work and increase the chances that they will contact you for a proper license. For the most part, the law reinforces these common-sense actions by imposing higher damages on infringers who ignore or tamper with Copyright Management Information (CMI for short). CMI isn’t legally required, but the law favors works that include it.

The basic elements of copyright notice are the © symbol (or the word “copyright”), the publication year, and your name. But CMI goes further than that; with the prevalence of digital distribution, you can embed that notice into the metadata of your files and include other things like the title of the work and your contact information. All of this constitutes CMI and can help your work achieve heightened protection under the law.

While including copyright notice is a practical step to reduce infringement, however, it is of little legal use once you catch an infringer unless you register your work with the Copyright Office. Copyright registration triggers two sets of rights that are vitally important if you are going to recover damages from an infringer: (1) registration allows you to recover statutory damages, including enhanced damages for willful infringement when applicable, and (2) it allows you to recover attorney’s fees and court costs in many circumstances (although ultimately this is up to the discretion of the judge). To see why these two sets of rights are so vital, it helps to understand what options you have if you don’t register your copyrights.

When someone infringes one of your statutory rights, making your case for infringement is usually straightforward; if someone performed any of the Section 106 acts without your permission then you probably have a case. Even if you haven’t registered your works with the Copyright Office, you are still entitled to several remedies, including monetary damages and an injunction to prevent further violation of your rights.

But without registration, monetary damages are limited to your actual damages (i.e. the harm you suffered as a result of the infringement) plus the profits of the infringer resulting from his wrongful act. These amounts can be sizeable, but they aren’t always easy to prove and are usually subject to dispute. If your case goes all the way to trial then a jury will ultimately decide your damages based on the arguments and counterarguments of both parties—a process that will require significant legal expenditures.

The end result is well known by defense attorneys: without registration, it will often cost you more in legal fees to enforce your rights than you could hope to recover in court. This creates an incentive for copyright defendants to drag their feet and delay resolution of a dispute, hoping that you’ll get sick of paying your lawyer’s bills and just give up.

Statutory damages and attorney’s fees turn this calculus in your favor in several ways. First, the statutory damages provision grants a minimum of $750 per infringement and leaves room for a judge to award up to $30,000 per infringement based on the facts of the case (up to $150,000 in cases of willful infringement). This means that when you first seek damages from an infringer you’ll start with a concrete figure, and--assuming you can prove infringement--you’ll be guaranteed to recover something. Better yet, the attorney’s fees provision means that you have a good chance at collecting your damages AND sending your legal bill to the infringer. This creates significant incentive for the infringer to come to the table and negotiate a quick settlement.

Copyright registration itself is a fairly painless process, particularly since the Copyright Office introduced online registration earlier this year along with a reduced fee of $35 for electronic applications. Paper applications are still an option for a $45 fee, and the Copyright Office recently improved this process by consolidating its previously confusing mess of forms onto a single PDF-based Form CO (sadly, the old forms are still necessary for group registrations of certain types of work).

While the online registration won’t win many style points, it gets the job done, and the Copyright Office claims that electronic applicants will get their Copyright Certificates weeks sooner than those who file paper forms. Finally, the Copyright Office website has an extensive library of guides and other resources to help you answer your copyright questions and use its applications.

Many attorneys will gladly help you fill out these forms for a reasonable fee, but the Copyright Office designed them with non-lawyers in mind. If you have questions once you start the process, you may want to hire a copyright attorney to walk you through the application the first time you register a work so that you'll be able to do register future works without assistance.

You can register a work at any time after you've completed it, but in order to gain the full protection of the statute you need to register your work before someone infringes it. For registering newly created works, however, you get a three-month grace period from the first publication of the work. Because of this grace period, many artists and authors simply set aside a chunk of time every three months to register all of the works they have created in the past quarter. This practice of "rolling registration" ensures that all of your works get full legal protection at all times.

Finally, a brief note on the so-called "poor man's copyright," whereby you supposedly establish ownership of a work by mailing yourself a copy of it and keeping the sealed letter until you need it. In short, this approach is useless. No cases I'm familiar with have endorsed this technique and, as others have pointed out, it is easy to forge. At most, this technique purports to establish ownership of a work, but as I've noted, this isn't usually the main sticking-point in a copyright dispute. Only actual registration with the Copyright Office gains you the full protection of copyright law, and it establishes ownership to boot!

The three steps I've discussed in this series of articles aren’t an exhaustive overview of copyright law, but they should give you at least a good idea of the basics. The good news is that by reading this far, you’ve probably already taken step 1 and step 2. How far you go towards protecting your work (step 3) will depend on your individual circumstances, but hopefully you at least have some background knowledge to inform your decision. As with any legal issue, you should consult a qualified copyright attorney to discuss your specific situation if you have any questions.

Disclaimer: This article may not be current, accurate, or complete at the time you read it.  Furthermore, the article's content should be construed as legal information and does not constitute legal advice. This article should not serve as a substitute for consultation with a professional attorney, and by reading this article you have not entered into an attorney-client relationship with its author.