Recently a client asked me whether he should register an an article he is publishing in a trade journal with the the U.S. Copyright Office. He explained that he had heard that copyright protection is automatically granted when the material is created, so he was wondering if there were any additional benefits to registering it. I explained that under the current law, works of authorship that are "fixed in a tangible meaning of expression" are automatically protected under copyright laws, but that registering the material does provide added protection and benefits.
For starters, if the work is registered within five years of its first publication, it is considered prima facia evidence (an automatic presumption of truth) that the copyright is valid. Also, if a work is registered within three months after its publication or prior to an infringement of the work, the copyright owner may be able to recover attorneys fees incurred in prosecuting the infringement plus an award for statutory damages as set by law as an alternative to actual damages and lost profits. If the work is not registered, the copyright owner may be able to recover actual damages and lost profits, but proving such damages can be difficult. Statutory damages, which are set by the court, can be anywhere from $750 to $30,000, and if the infringer is determined to have willfully infringed on the owner's copyrights then the court can award up to an additional $150,000. Therefore, having the option of receiving statutory damages can be beneficial when proving actual damages or lost profits will be difficult.
On the other hand, if you do not register your work, then you are limited to whatever actual damages and lost profits you can prove. Whether you register or not, the court can stop the other party from any further infringement activities, including requiring the other party to destroy any tangible items or marketing materials they may have that might infringe on your rights, but you cannot recover your attorney's fees and you will not have the option of requesting the statutory damages.
Copyright registration is very inexpensive and easy to do. The fee is only about $25.00 and registration can be completed online. Taking this extra step can be the difference between spending thousands of dollars to protect your property, money you will never get back, and stopping the infringement at the expense of the infringer.
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