October 16, 2009

You Must Have a Copyright Registered In Order to Sue For Copyright Infringement,

You can not sue for copyright infringement in federal court unless your copyright is registered.

It is often said that the poor man's copyright relies on common law because common law copyright rights begin as soon as an original work is fixed in a tangible medium of expression.  Clients often ask whether they should send a sealed and certified envelope to themselves via post containing the copyrighted work to ensure that they have evidence that they created a work prior to anyone else.  Priority of creation, however, does not have an effect on the validity of copyright protection in the United States.  These methods may have been beneficial prior to the Copyright Act of 1976 because publication was a prerequisite to copyright protection, but they no longer serve a purpose.  Instead, clients are best served by a copyright registration with the US Copyright Office.

Copyright registration with the US Copyright Office has several benefits that are not granted to holders of common law copyrights.  First and most importantly, a federally registered copyright grants the copyright holder the right to receive up to $150,000 in statutory damages and attorneys fees per registered work for copyright infringement.  Determining actual damages in a copyright infringement lawsuit can be extremely expensive and time consuming, so the ability to receive statutory damages and attorneys fees is a large incentive to register and a significant benefit.  Second, copyright registration, or the denial of a copyright registration, allows the applicant to bring a lawsuit in federal court for copyright infringement.  The Copyright Act preempted all state copyright laws, so a party must federally register to get federal court jurisdiction.  Finally, copyright registration within 5 years of publication gives the registrant a rebuttable presumption that the copyright is valid.  More simply, the defendant in a copyright infringement lawsuit must affirmatively prove that the copyright is invalid because a court will presume that it is valid. 

The common wisdom that a poor man's copyright will fully protect your rights is only partially correct.  Copyright registration within three months of publication best protects a client's rights, and it almost always makes sense to file for registration.  If you seek registration, contact one of our expert copyright attorneys today.


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