The Ninth Circuit recently ruled that a copyright holder can bring an infringement suit without a completed copyright registration so long as an application for registration is on file. Cosmetic Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d. 612 (9th Cir. 2010), petition for cert. filed, (U.S. Aug. 19, 2010) (No. 10-268). While registration is not necessary to perfect the copyrights in a work, the benefits of timely registration are so great that copyright owners should make a practice of registering their copyrights long before any infringement or litigation is contemplated.
To register a copyright, the copyright owner must submit an application to the Copyright Office that collects information about the work and its creation, along with the registration fee and a copy of the work for deposit. The fees vary but are generally low. Online applications can be filed for $35. Filing a paper application currently costs $65 for most works.
Early registration of a work offers many advantages, but perhaps the most consequential advantages are the ability to obtain statutory damages and attorney’s fees. Statutory damages do not depend on the actual harm to the copyright holder or the ill-gotten gains of the infringer, and awards can range between $750 and $30,000 for each infringed work. In the case of willful infringement, awards can go as high as $150,000. To qualify for statutory damages and attorney’s fees, a copyright owner must register the work prior to publication, prior to the act of infringement, or within three months following the first publication of the work. Otherwise, only actual damages or infringer’s profits may be recovered, which can be difficult and costly to prove, and are often less than the applicable statutory damages. And, Cosmetic Ideas notwithstanding, in many jurisdictions no copyright infringement suit can be brought until a certificate of copyright registration has been issued, which can sometimes cause troublesome delay.
Other benefits of timely registration include:
- Recording the registration with the U.S. Customs and Border Protection to prevent the importation of infringing copies.
- A legal presumption of the validity of the copyright and of the facts stated in the certificate.
- Establishing a public record of copyright ownership, which makes proving infringement easier.
- Gaining the confidence of potential investors and lenders. For many works, like brochures and pamphlets, the process is straightforward and can be done without the assistance of counsel. But registration of more complex works like computer programs and websites usually calls for the assistance of counsel, at least the first time.
Because the costs of a copyright infringement lawsuit can often exceed the likely damages recovery, especially in isolated instances of infringement, the copyright holder may, as a practical matter, have no real remedy for infringement unless he or she is eligible for statutory damages and attorney’s fees. Those who fail to timely register their works have limited remedies. It behooves any business whose assets include copyright-protected works to set up a registration program that will enable them to obtain full and meaningful remedies under the Copyright Act.