In the U.S., copyright protection subsists in a work of original authorship as soon as it is fixed in a tangible medium of expression. 17 U.S.C. Section 102 There is no requirement that the work be registered with the Copyright Office or that a copyright notice be affixed. As discussed below, however, there are circumstances when copyright registration and affixing a notice are advisable.
Copyright Registration Required to Bring Suit
17 U.S.C. Section 411(a) says that, generally, a copyright registration is required before the owner can bring suit for copyright infringement. Furthermore, Section 412 says that, generally, awards of statutory damages (Section 504(c)) and attorney’s fees (Section 505) are available only if the copyright has been registered within three months of publication or within one month of learning of infringement, whichever is earlier.
A plaintiff’s actual damages or the defendant’s profits from infringement can be difficult and expensive to prove. Accordingly, awards of statutory damages and attorney’s fees might be the only way that a plaintiff can financially justify bringing an infringement suit. In such a case, prompt copyright registration is essential.
Value of Copyright Notice
Statutory damages are awarded in the court’s discretion, up to $30,000 for infringement of a given work (Section 504(c)(1)), or up to $150,000 in a case of willful infringement (Section 504(c)(2)). Note, however, that a defendant can significantly mitigate actual or statutory damages that otherwise would be awarded by proving a defense of “innocent infringement”. (See, e.g., Section 402(d) with respect to sound recordings and Section 907 with respect to semiconductor chip products.) Presence of a copyright notice can help defeat an innocent infringement defense.
In summary, if you believe there is a reasonable likelihood you will need to bring an infringement suit to enforce your rights as a copyright holder, you should:
- Place a copyright notice on the work and
- Register the copyright with the Copyright Office
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.