From Mark Jaffe’s Twitter:
I was asked a couple of times: because you need registration to sue for copyright infringement, does a copyright really have any value if it’s not registered? The answer is yes, it most definitely does.
To recap, copyright protection exists at the moment you create the work. But before you can sue for copyright infringement, the work must be registered with the Copyright Office. But at the moment you create your copyright, it’s yours. It has value.
You can license your works. You can assign them. You have the same rights to control or restrict uses of your copyrights whether or not they are registered.
If you write songs, you can register them with PRO’s. Record music? Submit them to streaming services.
You can enforce potentially infringing uses of your copyrights. You can send cease and desist letters to potential infringers. You can send DMCA takedown requests. Neither requires copyright registration.
No one has any more rights to use your unregistered works than they would to use your registered works.
The copyright registration is a filing requirement. You have to have the registration before you sue. If it wasn’t registered before, you can get an expedited registration in just a few days, and sue as soon as you have it.
You also have to file a federal complaint and pay the filing fee to sue. But that doesn’t mean your copyright doesn’t have value until you pay a filing fee.
The date of your registration can affect the *damages* you might receive in a successful copyright infringement.
But, under the current laws, the date of your copyright registration doesn’t affect the value of the copyright. It doesn’t factor into a copyright infringement or fair use analysis*.
(*It’s a big country with a lot of courts. I suppose there’s a decision or two out there that factored a late copyright registration in a fair use analysis.)
Getting back to damages: if your copyright is registered before infringement, you can get statutory damages and attorneys fees in a successful lawsuit.
Sometimes statutory damages are a big draw for copyright litigators. They can be up to $150,000 per copyright infringed.
But if the copyright wasn’t registered before the infringement, a successful litigant can receive actual damages – and – defendants’ profits attributed to the infringement. Often, defendants’ profits is a bigger draw than statutory damages.
Look, if your copyrights matter, then it’s a good idea to register them and to do it correctly. But it’s false to say your copyrights have no value until they’re registered.
I forgot to mention Fourth Estate Benefit Corp. v. Wall-street.com, the Supreme Court decision on copyright registration. Does that change the premise of what I wrote? Nope. The Fourth Estate decision is only about when the copyright is deemed registered *for the purpose of the filing requirement*. It has nothing to do with whether a copyright exists, or with the value of the copyright.
Before the Supreme Court ruled on this, courts were split. Some held that the copyright was registered *for the purpose of the filing requirement* when all the materials are sent to the Copyright Office. 17 U.S.C. 511: https://law.cornell.edu/uscode/text/17/511
Others held that the copyright wasn’t registered *for the purpose of the filing requirement* until the Copyright Office issues a registration. And that’s the view the Supreme Court adopted. https://supremecourt.gov/opinions/18pdf/17-571_e29f.pdf
But nothing else changes. You can still, for instance, get that copyright registration a day before you sue. If you need it quickly, you’ll have to pay extra for the “special handling”, but you can do it. https://copyright.gov/registration/docs/processing-times-faqs.pdf
Heck, if the Copyright Office denies the registration, its denial allows you to file a copyright infringement complaint, albeit with a disadvantage.
And if you’re suing over a non-U.S. work, you don’t even have to have the copyright registered before you sue in the U.S.
Latest posts by Mark Jaffe (see all)
- Hold My Brand: Trademark Considerations for Rock Bands and Other Musical Artists - March 6, 2020
- Because you need registration to sue for copyright infringement, does a copyright really have any value if it’s not registered? - December 11, 2019
- The Reconcilable Conflict Over Copyright Registration – A Proposal - May 23, 2019