Copyrights are among the most valuable and important types of intellectual property. A “copyright” is a property right that exists for original artistic works. Books, songs and movies are common examples of artistic works that are protected by copyright law. Generally, low-level copyright protection comes into existence when the original artistic work is completed. Among the legal rights that come into existence when the original work is completed are the right to control who may use or copy the original work and who may create derivative works (works that are based on the original).

However, copyrights are given a powerful extra layer of protection by the federal Copyright Act. See 17 U.S.C. §101 et seq. Among the most important protections provided by the Copyright Act is the ability to:

• Sue third parties for copyright infringement
• Collect statutory damages and
• Be awarded attorneys’ fees

See 17 U.S.C. § 412. However, to be eligible for these three important protections, an artist or creator must register their copyright with the Copyright Office in Washington, D.C. See 17 U.S.C. § 411(a). Moreover, the process of obtaining registration must be complete before any of these protections come into existence. This is the holding of a recent unanimous US Supreme Court case called Fourth Estate Public Benefits Corp. v. Wall-Street.com, 139 S.Ct. 881 (2019) (registration must be completed before an infringement case can be commenced). Experienced copyright attorneys, like the ones at Revision Legal, can detail your rights under the copyright laws and explain what is required to fully protect your rights.

The process of registering a copyright takes time, so owners must be mindful of the long lead times if infringing behavior is discovered and litigation is being contemplated. Normal processing of a registration application takes several months. Even with expedited processing, registration still takes several weeks. For these reasons, the best practice is to register copyrights very early in the process either just after the original work is completed or just as the commercial monetization of work is beginning.

There is another important and often overlooked reason for registering copyrights early in the process. This reason relates to the potential necessity for emergency injunctive relief from a federal court. Such “emergency injunctive relief” would be requested pursuant to a motion for a temporary restraining order (“TRO”). An example of a TRO request would be asking a federal judge to stop immediately the release of a book or movie that infringes on your copyright. However, as suggested, TROs are only issued in an “emergency.” In legal jargon, a copyright plaintiff must show “irreparable harm” by the infringing behavior if the TRO were to be denied.

While there is a legal presumption that there is irreparable harm/injury if copyright infringement is shown, that presumption can be rebutted. Among the potential rebuttal arguments is that there is no need for urgent judicial action since the copyright owner felt no urgency in registering their copyright. A defendant might ask “How can there be ‘irreparable harm’ if the plaintiff has been waiting and dithering for weeks and months while the Copyright Office processed the application for registration? Further, the defendant can argue that there is no irreparable harm because copyright protection was not important to the artist. Otherwise, the artist would not have waited until the last minute to file for registration.

Of course, it is unknown whether these sorts of rebuttal arguments would “carry the day” before a federal judge. But these defense arguments can be entirely eliminated by an early copyright registration.

Statutory Damages: The Most Powerful Benefit of Registration

The single most important financial advantage of copyright registration is access to statutory damages. Under 17 U.S.C. § 504(c), a copyright owner whose work was registered before infringement commenced — or within three months of first publication — can elect to receive statutory damages instead of proving actual damages and lost profits. Statutory damages range from $750 to $30,000 per work infringed at the court’s discretion. If the infringement was willful, the court may award up to $150,000 per work.

This matters enormously in practice. Proving actual damages from copyright infringement is notoriously difficult. The copyright owner must quantify lost sales, price erosion, and harm to market value — all of which require expert testimony and extensive discovery. In many cases, actual damages are modest even when the infringement was brazen. Statutory damages allow a copyright owner to recover a meaningful sum without the burden of proving quantifiable economic harm. They also serve as a powerful deterrent against willful infringement.

By contrast, an unregistered copyright owner — or one who registered after infringement began and more than three months after first publication — is limited to actual damages and the infringer’s profits attributable to the infringement. That limitation often makes litigation economically impractical for small-scale infringement, leaving the copyright owner without an effective remedy despite having a valid legal right.

What Works Should Be Registered and When

Any original work of authorship that has commercial value or that you intend to exploit commercially should be registered. This includes written works such as books, articles, blog posts, and marketing copy; visual works such as photographs, graphic designs, logos, and illustrations; musical compositions and sound recordings; software and computer code; videos and films; and architectural works.

The timing of registration is critical. The Copyright Act provides a three-month window from first publication during which registration preserves access to statutory damages and attorneys’ fees even if infringement has already begun. After that window closes, registration is still valuable — it remains a prerequisite to filing suit — but it does not restore access to the full range of remedies for infringement that predates registration.

Best practice is to register no later than publication, and ideally before any commercial release. For software companies, this means registering code before launch. For authors, this means filing before releasing a book. For photographers and graphic designers, this means registering portfolios periodically, since the Copyright Office allows a single registration to cover multiple works in certain circumstances through group registration options.

The Registration Process

Copyright registration is handled by the U.S. Copyright Office, a division of the Library of Congress. Registration is completed online through the Copyright Office’s electronic registration system at copyright.gov. The application requires basic information about the work, the author and claimant, the nature of the work, and the year of creation and publication. A deposit copy — a copy of the work being registered — must also be submitted electronically or physically depending on the type of work.

The Copyright Office typically processes applications within several months, though processing times vary based on the type of work and current backlogs. Expedited registration — called “special handling” — is available for an additional fee when registration is needed urgently, for example because litigation is imminent. Even with special handling, there is no guarantee of a specific turnaround time.

An experienced copyright attorney can assist with registration, ensure that the deposit copy and application are properly prepared, and advise on registration strategies for portfolios of works. Given the significant consequences of an error in registration — particularly one that affects the timing of registration relative to infringement — working with experienced counsel is a sound investment.

If you have questions about protecting your copyrights and other intellectual property, contact the copyright lawyers at Revision Legal at 231-714-0100.