Register Early – Register Often
Many copyright owners face the challenging decision of whether to undergo the time and expense of registering their copyrights. Failing to register copyrights, however, can have a significant impact on whether you will be able to recover for infringement.
Under 17 U.S.C. 504, a copyright owner can recover:
(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
Under section 412, however, “no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
In other words, if a work is not registered prior to the infringement, in most cases the copyright owner is limited to actual damages. What happens if the infringer uses the work in a manner which is not competitive with the copyright owner, or the copyright owner does not have a way of otherwise showing damages? The copyright right owner may be out of luck.
In Dash v. Mayweather, 731 F3d 303, the U.S. Court of Appeals awarded summary judgement to Floyd Mayweather despite the fact that Mayweather violated Anthony Lawrence Dash’s copyright by playing a variant of Dash’s copyrighted music during Mayweather’s entrance at two WWE events. Dash attempted to rely on an expert to determine the licensing value of the work to prove actual damages. Finding that the expert opinion was too speculative, the court awarded summary judgment to Mayweather because no actual damages had been proven. With an early registration, Dash could have obtained statutory damages (not to mention attorney’s fees).
Federal copyright registration is perhaps the least expensive and most powerful way to protect your intellectual property – but only if registration is promptly filed.
The lesson: Register Early – Register Often.