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Copyright Part I: You need to register your copyright
Ever since I discovered my copyright had been infringed, I have been carefully researching and documenting everything I can to better understand copyright law and my rights under it. When I spoke with a lawyer last week, one of the things he suggested was sharing what I have learned with other people. I think this is an excellent idea. I am still pursuing certain actions as a result of the infringement of my text, but nothing I say in these posts will reflect on my situation in particular. This is good, general knowledge that I wish I’d known three years ago—knowledge I think every blogger should know.
Note also: Standard disclaimers apply: I am not a lawyer, this is not legal advice. There may be errors in my understanding or interpretation of the law. I’ve linked to resources at the U.S. Copyright Office to show where my conclusions are grounded; in most cases, these links are to sections of the copyright law so you can do your own research. You should take any specific questions to an attorney.
Part I: You need to register your copyright. Not “should.” You need to register your copyright.
It’s true you don’t have to register your copyright in order to establish your rights (Section 102). You don’t even have to put a copyright notice on your work for the copyright to apply (Circular Three: “Copyright Notice”).
However, if you want to pursue your case in court, you must register your copyright. I’ll say it again: copyright registration is a prerequisite to court action (Sections 411 and 412).
All copyright cases fall under the jurisdiction of the federal copyright law (Section 301), and, although this is conjecture, I believe mandatory registration establishes the federal jurisdiction. This means you can’t take someone to small claims court over a copyright case, by the way. If you’re pursuing legal action, you’re pursuing it as a federal case.
Now, the interesting thing about all of this is that you do not have to register your copyright before your rights are infringed. You only have to register it before you pursue legal action. You can discover your rights were infringed, register the copyright, and then pursue action.
However, if you do this, you can only sue for actual damages and you cannot sue for attorney’s fees (Sections 412, 504 and 505).
On the other hand, if your copyright was registered prior to infringement*, you can sue for statutory damages of up to $30,000 ($150,000 for willful infringement) and attorney’s fees (Sections 412, 504 and 505).
The difference between having to pay attorney’s fees at a federal court level and being able to sue for them as part of the judgment will, I believe, for most average bloggers determine whether or not we can afford to take someone to court. In addition, I believe you’ll be more likely to find an attorney who will take the case on a contingency basis if you can ask for statutory damages rather than having to prove actual damages. Statutory damages may exceed actual damages, especially in cases where “actual” damages may be hard to find but you can prove willful infringement.
*There is one caveat to having to register prior to infringement. You have three months from the time you fix your work in tangible form to register your copyright. If your work is infringed during these three months, you can still pursue legal action and sue for statutory damages and attorney’s fees. However, if you discover an infringement during these three months, you must register within the next month in order to sue for statutory damages and attorney’s fees (412).
Confused? I think this is how it works:
Say I write a post March 1. I have until June 1 (three months) to register my copyright. If I discover in September that in April someone infringed upon my rights, I can still sue for statutory damages because I am protected by the three-month clause.
However, say I write the post on March 1 and discover on April 1 that someone has infringed my text. Now I have to register the copyright by May 1 (30 days) in order to retain my right to sue for statutory damages. The thirty-day period will expire before the three-month period. Remember, though, that this thirty-day period applies to the discovery of infringement. If I don’t discover the infringement until later in the year, but register the copyright within the three-month period, I am still protected.
But say I write the post on March 1 and don’t register my copyright until July 1, and later discover that someone infringed upon my rights back in April. I can register my copyright and take them to court for the infringement of my rights, but I cannot sue for statutory damages or attorney’s fees because I did not register in that three-month window.
The message I take away from all of this is: register your copyright now, before your work is stolen. And reregister your copyright every three months if you are adding content (such as to a blog). This way, you are always protected by the three-month clause. In the meantime, if you ever discover someone has infringed upon work written after your last copyright registration, reregister immediately so that the registration will fall in the thirty-day window.
Currently, copyright registration is $45. That’s $180 a year ($45 every three months). Think of it as insurance: for just $15 a month, you are securing the right to sue for both statutory damages and attorney’s fees. Unless you are absolutely confident that you will be able to prove actual damages and those damages are high enough to warrant paying for a federal court case, that $15 a month may be the difference between your decision to pursue legal action and allowing a plagiarist to walk away.
Part II will cover how to register your copyright. It’s easier than you might think, and, honestly, at only $45, it’s one of the most affordable government fees I’ve ever seen.
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