By David Posteraro and Alex Welsh
You already know the value of your intellectual property. But are you doing everything you should to protect it? Not if you don’t proactively register your copyrights! As part of your overall brand protection strategy, a regime of consistent copyright registration is essential for effective enforcement activity, requires minimal investment and preserves the potential for substantial recovery.
A copyright is a form of federal protection for works of original authorship. Copyrights often protect valuable parts of your business – technical drawings, computer programs and software, product photographs, and advertising materials, for example. A copyright includes the exclusive rights to reproduce, distribute, display, perform and broadcast the work as well as prepare derivative works based on the original. As with patents, copyrights are a product of federal law and are subject to the exclusive jurisdiction of federal courts.
Copyright registration is essential for effective brand protection activity. In fact, without registration, your copyright cannot form the basis for an infringement claim. In other words, you can’t recover anything for infringement of your unregistered works, even though such activity is unlawful. The Supreme Court recently confirmed that this is the law of the land, in Fourth Estate Public Benefit Corp. v. Wall-Street.com. In that case, a news site improperly displayed copyrighted content after terminating its licensing agreement with the owner of the copyrights. In interpreting Section 411(a) of the Copyright Act, which states that no copyright lawsuit may be “maintained” until “registration . . . has been made,” the Court clarified that “registration” means official registration or refusal by the Copyright Office, but not merely application for registration.
This reality has not yet filtered its way through to every organization’s IP action plan. Misconceptions about copyright fundamentals may be to blame. For example, you may have been told that you don’t need to register your work because it’s automatically protected. While technically correct, this notion does not accurately reflect the practical reality of enforcing your copyrights. It’s true that your work is automatically protected the instant it is fixed in a tangible medium of expression, but this protection cannot automatically be enforced. As discussed above, infringement of your work is always prohibited, but a lawsuit cannot be brought unless the Copyright Office has first approved (or refused) registration of the underlying work.
Routine copyright registration requires minimal investment. The registration fee for a typical copyright is relatively slight – only $35 for the standard, single author, one work, online application – plus the cost of having a legal professional prepare the application, if you opt for the security of professional preparation.
Routine registration preserves your right to the maximum possible recovery in the courtroom. The Copyright Act provides multiple remedies to victims of copyright infringement. In addition to injunctive relief to help curtail the infringement, the copyright owner may seek either actual damages or statutory damages. Actual damages represent the lost profits of the copyright owner plus any profits of the infringer not accounted for in that figure. Actual damages can be difficult to calculate and quite limited in some cases.
Statutory damages range from $750-$30,000, within the Court’s discretion. In cases of innocent infringement, the floor is lowered to $200. But in cases of willful infringement, the cap is raised to $150,000. And you should keep in mind that those figures represent the range of damages that can be collected for each work that is infringed upon. The Copyright Act also provides for the recovery of attorney fees, which can represent a significant sum in protracted litigation.
Prudent copyright owners will not only register, but register early. This is because all of those benefits may be lost if you don’t register before publication or within three months of publication, as set forth in the Copyright Act.
Registering your copyrights can have other positive effects, such as deterring infringement, improving the impact of non-litigation brand enforcement activities, and increasing the value of your intellectual property portfolio for licensing or sale.
For some other steps you can take to build a solid intellectual property foundation and secure your competitive edge, click here.
For more information, contact David Posteraro at drp@kjk.com or 216.736.7218, Alex Welsh at amw@kjk.com or 216.736.7263, or reach out to any of our Brand Enforcement professionals.
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