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Williamson & Young, PC: Info & Audios

Q&A - When to Register a Copyright

(Williamson & Young)
June 20, 2008
Copyright 2008 Kathleen Williamson
Once you have created a fixed creative expression, (i.e., "fixed" means your idea has been written, recorded, drawn, etc.,) you automatically have a common law copyright. But you cannot get into federal court under federal law to bring a suit against an infringer until you have registered your copyright. You can register after the infringement in order to have jurisdiction and get into court, however, you will have lost some of the best benefits of the Copyright Act protections because you did not timely register your copyright.
To be safe, file your copyright within three months of the date of publication (or to be safer, within three months of when the work was first made public in any way, even if not intended for publication in the marketable sense of the word). If you register after publication, you may still be in luck if it was before any infringement on your work. But that is a risky waiting game. 17 USC 412 states that statutory damages or attorney fees shall not be awarded when an infringement started before the date of the registration. The date of registration usually relates back to the date that the properly filed work and registration was received by the Copyright Office. Late races to the Copyright Office after you have become aware of an infringement will block your ability to get these benefits. What that means in practical terms is that without the benefit of statutory damages, you will have to prove actual damages and that is a tough hurdle for an unheard of artist. Also, you will find it very hard, if not impossible, to find a lawyer on contingency where there is no possibility of statutory damages or attorney fees paid by the other side under the Act. With statutory damages, you don't have to prove the actual damages in order to fall within a healthy range of statutory penalties. These can be up to $150,000 per infringement where it can be shown that the defendants willfully and intentionally infringed on your work. Also, if some less than ethical player who is tempted to steal your work does a cost/risk/benefit analysis, they will think twice if you have already registered your work. They can search for your name or the title.
If you think your work is worth protecting or fighting about after a rip-off, it’s worth protecting yourself earlier than later.

kgw - 06.20.08