A distinction with a difference: copyright vs. copyright value


We’ve all seen copyright notices like this:  “© 2012 John Doe”.  Copyright law is great in that you aren’t even required to register your work (e.g., book, song, software, design, painting) with the U.S. Copyright Office in order to have protection under the law.  But, when a work is unlawfully copied, the value of that protection often hinges on whether registration took place beforehand. 

Here are a couple of examples to illustrate the point:

Example 1:  John Doe is a designer and makes Design A.  He doesn’t register Design A with the Copyright Office, but he gives the usual notice that he owns the copyright by placing “© 2012 John Doe” on the design.  Then, Acme Bad Company steals Design A and turns a huge profit on it. 

Q:  What is John legally entitled to? 

A:  He is entitled to Acme’s profits plus any losses he incurred as a result of the copying.  He will have to get the work registered first with the Copyright Office before he initiates legal action though. 

Not bad.  But…

Example 2:  John registers Design A with the Copyright Office shortly after completing it.  (He did this either himself for < $100, or he had an attorney help him for < ~$500.)  Acme Bad Company steals Design A and turns a huge profit. 

Q:  What is John legally entitled to? 

A:  Because he registered his work prior to infringement, the value of John’s copyright claim has increased significantly.  He is still entitled to Acme’s profits plus any losses he incurred.  But, significantly, he may elect to instead pursue statutory damages, which are often more valuable.  Statutory damages are between $500 and $20,000 for each work infringed, and up to $150,000 per each work if it can be shown that Acme infringed willfully.  Importantly, the law also authorizes the court to award John the cost of his attorneys’ fees for addressing Acme’s unlawful conduct.

Much better.     
   
So, does it make sense to register your work?  As usual, the answer will depend on a case-by-case basis.  It is very common to see copyrights go unregistered.  But, I typically see regret when registration---with its minimal expense---is delayed or foregone, a work is then copied, and the copyright owner learns the above. 

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