Since the adoption of the Berne Convention in 1989, many people have come to learn that a copyright attaches to a work as soon as it’s created. Thus, many people forgo the time, effort and expense of registering their copyrights assuming they are protected. Registering a copyright, however, provides several distinct benefits which are important if your works are infringed.
First and foremost, a copyright registration is necessary to file a lawsuit in many jurisdictions. While some circuits allow a lawsuit to be filed upon evidence that the copyright application has been filed with the US Copyright Office, other circuits, such as the 10th Circuit (including Utah, Colorado, Kansas, New Mexico, Oklahoma and Wyoming) require that the copyright registration actually be received prior to the filing of a lawsuit. The last thing one wants to do upon learning of a copyright infringement is wait for the copyright office to process the application. While expedited registration can be obtained, it is far most expensive than a traditional filing and can still take several weeks.
Second, statutory damages require prompt registration. Ordinarily a plaintiff is required to prove the amount of damages caused by the defendant’s infringement. In a copyright statutory damages claim, however, a judge is given wide latitude to award an amount which he or she believes is appropriate for the infringement committed. This is can be particularly beneficial if you have an uncooperative defendant who will not provide information regarding their sales.
Finally, registration of the copyright is generally required to obtain attorney’s fees under the copyright act. If a work has not yet been published, it must have been registered prior to the infringement. If a work has been published, it must be registered either prior to the infringement or within three months from the date of first publication in order to qualify for attorney’s fees. The availability of attorney’s fees in a copyright dispute often results in a quick settlement as the defendant usually does not want to pay damages, their own attorney’s fees and those of a third party.
For more information on registering copyrights, contact Randall Bateman, Shareholder and Intellectual Property Section Chair at (801) 415-3000 or firstname.lastname@example.org