Should You Register Your Copyright?
So you’ve finally written that song you’ve had in your head for ages. Or maybe it’s that short story you’ve been meaning to write. Or a work of visual art. Like most artists, you’re proud of what you’ve accomplished. The work you created means something to you, and you’d like to protect it as best you can. After all, it’s your creation.
You already know that “original works of authorship” are copyrighted the second they’re “fixed in any tangible medium of expression,” i.e., recorded onto a tape, typed into a word processor, brushed onto a canvas. But lately you’ve heard lawyers stressing the importance of registering the copyright with the U.S. Copyright Office. This sounds to you like the drumming up of superfluous legal work. After all, if registration isn’t required for copyright protection, then why do it? Sure, it only costs $35 to e-file, but that’s $35 you could spend on instrument cables. Or paint. Or dinner with your significant other.
Well, as it turns out, there are many reasons to register your copyright. In fact, if you’re publishing your work, then that $35 investment can yield significant monetary and non-monetary benefits. But before we get into the dollars and cents of registration, let’s talk about why you’re concerned with copyright protection in the first place. You want to protect your art in the event someone uses it without your permission, right? If that’s the case, then you shouldn’t hesitate to register your copyright. While registration isn’t necessary to obtain copyright protection, it is necessary to enforce the copyright (with some important but limited exception). In other words, if Nemesis steals one of your songs and you want to sue him for all he’s worth, then you have to register the copyright in the song as a prerequisite to bringing suit.
Moreover, the registration process is a lengthy one. If you e-file, you can expect to wait three months for a certificate of registration to issue. If you file by paper, it could take up to 10 months. That’s a long time to wait to bring suit against an infringer. Sure, you could expedite the registration with the U.S. Copyright Office, but the “special handling” fee is an additional $760. From a logical perspective, if you have to bring suit in order to protect your work, and you have to register your work in order to bring suit, then why not register the work before the act of infringement so that you’ll be ready in the event such act occurs?
Plus, even if you can afford the special handling fee, because your song wasn’t registered before the act of infringement, i.e., before Nemesis stole your song, all you can get in court are “actual damages,” which means either profits you lost as a result of the infringement or profits gained by the infringer that were attributable to the infringement. What’s more, those damages are often difficult to prove, and Nemesis might be allowed to deduct certain costs from them. And what if Nemesis actually loses money with your song? Then you have to rely on your lost profits, which in this case would be the going rate for legitimate licensing opportunities. Considering those reduced damages and the fact that you must file copyright infringement cases in federal court where filing can cost $400 or more, you might be spending more money than would be awarded in court, especially if you have to expedite the copyright registration and pay a (greedy) lawyer.
If you had registered the work before the act of infringement, then you can quote the registration number in your cease and desist letter, letting the potential defendant know that you can bring suit today. Also in that letter, instead of mumbling something about actual profits, you can point out that, according to copyright law, you are entitled to statutory damages and attorney’s fees. Specifically, under the statute, you can elect to recover, instead of just the actual damages described above, statutory damages, which will not be less than $750 and not more than $30,000. And, if the court finds that the infringement was willful (e.g., if Nemesis knew the work was copyrighted but stole the song anyway), then you could get up to $150,000. Legitimately referencing potential damages of up to $150,000 in your cease and desist letter should help to scare Nemesis into providing you with a handsome pre-trial settlement, thus avoiding litigation altogether.
Finally, let’s say Nemesis not only steals your song, but also registers the copyright before you do. Yes, he has technically submitted false information to the Copyright Office, but the Copyright Office does not investigate the legal sufficiency of copyright claims—they take Nemesis at his—in this case, false—word. Now, in order to sue Nemesis, you still must register the copyright, but now you also have to prove in a court of law that you wrote the song before Nemesis. Maybe this will be relatively easy; maybe your computer automatically documented the date you recorded the song. Maybe you recorded the song on tape and then mailed it to yourself (hopefully via certified mail, unopened) in an effort to establish the date of creation. But what if you didn’t? What if you only recorded the song into a tape player and then played the tape to Nemesis? In that case, you’d have no (or little) evidence with which to controvert Nemesis’s claim, and because he registered the copyright first, the presumption is that he is the original author. Conversely, if you register the song before the act of infringement, then that strong legal presumption is yours.
Sound overly paranoid? I have personally represented artists whose options were severely limited due to failure to timely register copyright. So why not go ahead and protect your works of art, so that if an act of infringement occurs (and hopefully it won’t), you’ll be prepared. For more information on copyright registration, visit the U.S. Copyright Office’s website. Subsequent posts on this blog will discuss the act of registration in more detail. Contact me for any questions or comments.
 17 U.S.C. § 102(a).
 “Publishing” means displaying, performing, publishing, disseminating, etc. If you’re not planning on publishing your work, then registration might not be appropriate, as no one will be viewing your work. Nevertheless, for reasons discussed below, you should consider it anyway.
 Note that some jurisdictions only require that a registration be filed before a suit may be brought. However, even a filing requirement may cause delay. If you think you may live in a filing-only jurisdiction, you may want to consult an attorney to make sure the law has not changed and that you are indeed correct. Finally, in limited situations you may be able to bring suit even if you reside in a jurisdiction that requires actual registration (instead of mere filing) if there is a refusal to register. However, that topic is outside of the scope of this blog post. If you have questions about that, feel free to contact me.
 Yes, that’s how much it costs: http://www.copyright.gov/docs/fees.html. “Special handling” usually results in a certificate of registration in about a week.
 Note that so long as the act of infringement occurs within three months of the “publication” of the work, i.e., the date on which you released the work into the world for sale, distribution rental, lease, etc., then you can still register the copyright and obtain the statutory damages. However, the act of infringement has to occur within that three-month window and the work must also be registered within that same three-month window. Note that merely displaying the work in public is not normally considered publication.
 17 U.S.C. § 412.
 17 U.S.C. § 504(c)(1). Of course, if you believe your actual damages are greater than $30,000, and easily provable to boot, then you might not want to make this election.
 Note that on the other hand, if the court finds that the act of infringement was innocent, e.g., Nemesis “accidentally” re-wrote your song) then damages may be reduced to not less than $200. 17 U.S.C. § 504(c)(2).
 This assumes you register the copyright within five years of publication. If you do not, you may lose the presumption of legitimacy that comes with early registration.