Under the Copyright Act, copyright automatically exists for “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). When an artist paints on a canvas, an author types a novel using a word processor, or a singer records a song as an mp3, each of them obtain a copyright in their works at the moment of creation. So if copyright already exists, why bother registering the copyrights with the U.S. Copyright Office?
There are a number of benefits to doing so. One of the more important ones is being able to recover attorneys’ fees and statutory damages in a lawsuit—without a copyright registration, a plaintiff cannot recover these damages (or even bring a lawsuit in the first place).
The Copyright Act allows a successful copyright plaintiff to recover (1) attorneys’ fees and costs, in the court’s discretion, and either (2) actual damages and the infringer’s profits that are attributable to the infringement, or (3) statutory damages. 17 U.S.C. §§ 504(a), 505. Statutory damages can be significant: between $750 and $30,000 per work infringed, “as the court considers just.” 17 U.S.C. § 504(c)(1). If the infringement was willful, the maximum amount jumps to $150,000. 17 U.S.C. § 504(c)(2). It’s no surprise, then, that statutory damages are often elected over actual damages/infringer’s profits. Besides often allowing a greater recovery, statutory damages also don’t require the burdensome showing of evidence that actual damages and infringer’s profits usually require, such as complicated financial statements and experts to testify on the portion of the infringer’s profits that are attributable to the infringement.
However, there is an important limitation on the ability to recover attorneys’ fees and statutory damages. For unpublished works, if the infringement occurred before registration, the plaintiff is barred from recovering attorneys’ fees or statutory damages. For published works, if the infringement occurred after first publication but before registration, the plaintiff is also barred, unless the registration was made within 3 months after first publication. 17 U.S.C. § 412. In other words, if infringement occurred before registration, the plaintiff is out of luck, except there is a 3-month grace period for published works. This means that a copyright holder who wants to ensure that attorneys’ fees and statutory damages are available should register her work as soon as possible, and no later than 3 months after publication (for published works).
What makes a work “published” versus “unpublished”? That’s a surprisingly complicated question. The Copyright Act defines “publication” as the distribution of copies “to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 101. Offering to distribute copies to a group of people for purposes of further distribution, public performance, or public display is also a “publication.” However, a public performance or display of a work by itself is not a “publication.” The legislative history of the Copyright Act further states that a work is “published” if one or more copies of the work are “distributed to the public” with “no explicit or implicit restrictions” with respect to the disclosure of the contents of the work. H.R. Rep. No. 94-1476, at 138 (1976). If all that seems unclear, you’re in good company. Entire lawsuits are fought over whether something is “published” or “unpublished,” which is often a very fact-specific question.