Copyright Infringement Damages: How Copyright Registration and Notice Can Make a Big Difference

Many have heard that formally registering a work with the US Copyright Office and displaying the "©" symbol are not necessary to receiving copyright protection. However, copyright registration and copyright notice significantly impact damages in a copyright infringement lawsuit.

What is copyright registration?

Copyright registration is a formality to create a public record of your copyright. Registration requires fulfilling three steps: (1) sending a completed copyright application form with the US Library of Congress; (2) sending a filing fee; and (3) sending a "deposit" of the work being registered. Even though registration can be straight forward, the type of working you are registering, timing and other factors can sometimes complicate the process.

What is copyright notice?

Copyright notice is a mark that lets to public know that a work is copyrighted. Notice became optional after the US became a party to the 1989 Berne Convention. For "visually perceptible copies," notice requires three elements: (1) a mark showing the work is copyrighted, which can take the form of the well-known "©" symbol, the word "copyright" or the abbreviation "Copr."; (2) the date of first publication; and (3) the name of the copyright owner. Just like registration, notice is often a simple matter, but sometimes circumstances can render it complex.

Why bother with copyright registration?

Aside from registration being necessary to file an infringement suit, the primary reasons for registering a copyright is to make proving infringement easier and to potentially increase copyright infringement damages. Registration reduces the practical burdens of proving damages in a copyright infringement case. If a work is registered within five years of publication, it is considered prima facie evidence of the copyright's validity. This presumption of validity aids counsel in proving the infringement.

Copyright registration also entitles a copyright owner to statutory damages and attorneys fees. Without the option of statutory damages, a copyright owner will be forced to prove actual damages and wrongful profits, which may be difficult or non¬existent. With availability of statutory damages and attorneys fees, simply proving infringement can be enough to obtain a worthwhile recovery. More significantly, it acts as a deterrence and a threat to those who illegally misappropriate copyrighted works.

Why bother with copyright notice?

Including a copyright notice on copyrighted works not only increases copyright infringement damages, but it also deters potential infringers, and facilitates contact with potential customers.

US copyright law provides for an "innocent infringer" defense, which reduces damages if an infringer did not realize that a work was copyrighted. Copyright notice precludes the innocent infringer defense, and increases the amount of damages available to the copyright owner. Eliminating the innocent infringer defense obviously is significant to increase damages and to act as a meaningful deterrence to potential infringers. As it is neither expensive nor difficult to include proper copyright notice, and it may further add value to the work, a copyright owner should identify the work as a protected work.

Consequences of Registration After Infringement

Unfortunately, the registration of a copyright after an infringement, but before a lawsuit is filed, does not entitle the copyright owner to attorney's fees or statutory damages. This is further incentive to register works closer to the date of creation and / or publication. Registering a copyright after infringement will, however, entitle a copyright owner to sue, but the copyright owner will not be able to recover statutory damages. Unless the infringement is significant, a copyright owner in this situation must carefully evaluate the monies it spends to litigate the lawsuit, and the likelihood and value of recovery. Absent the availability of statutory damages, the calculus may disfavor proceeding with litigation. This, however, is analyzed on a case by case basis, with counsel.

The potential benefits of registration and notice often outweigh the costs

Because copyright registration and notice can often be had inexpensively and easily, it often makes sense to do both. The fact that registration and copyright are not necessary for copyright protection can lull people into a false sense of security, causing them to lose sight of their potential importance in court. Individuals and businesses, creating commercially valuable works, should consult with counsel to ensure the works are sufficiently and adequately protected soon after the work is created.

The Vethan Law Firm can help you with copyright registration and notice

The experienced attorneys at the Vethan Law Firm have years of experience dealing with an array of intellectual property issues including copyright registration, copyright notice, and litigation involving copyright infringement damages. Contact us today at (713) 526¬2222.

See Also:

Deciding between Copyright and Trademark Protection
The New Business Reality of Enforcing Non-compete Covenants Under Texas Laws
Texas Consumer Law- How to Stay Away from Predatory Lending