As I've said before, you are a copyright holder. Everything you write, blog, draw, paint, shoot (with a camera), record, or otherwise get out of your head and on to some semi-permanent format is covered by copyright law.
While it is true that copyright protection for a creative work vests in the author of that work from the moment it becomes fixed in a tangible medium of expression, you shouldn't ignore the incredibly strong benefits of registering your work with the U.S. Copyright Office. This article discusses some basics of copyright law and why registration is such a good idea.
Registration is not required for copyright protection (but you're crazy not to do it).
Copyright protection vests in the author of an original work at the moment the work is fixed in a tangible medium of expression.
As soon as you put pencil to paper, brush to canvas, fingers to keyboards, or click a shutter, you’ve fixed a work. As long as it can be perceived by another person, even if you etch it on a grain of rice and need a microscope to see it, you have copyright protection.
But while registration is not necessary to gain protection under the law, the statutory benefits of holding a registered copyright make the relatively small $35 fee (for online registration) well worthwhile in most situations. Moreover, most of the benefits to registration accrue based on the date you apply for registration (assuming your application is complete), not the date you receive your certificate, so the sooner you submit your application, the better your legal position will be (especially considering the reported backlog at the Copyright Office for processing some applications).
Benefits of Registration
Registration provides several important benefits to authors and copyright holders:
(1) Registration before an infringement occurs (or within the first 3 months after you publish a work) lets you seek statutory damages and legal fees from an infringer.
Statutory damages and legal fees can be important tools for a copyright holder: statutory damages because they help eliminate some of the burden and cost of calculating actual damages in an infringement suit, and legal fees for reasons that should be self-evident. Statutory damages in a lawsuit are an election for copyright holders, not a requirement, so if your actual damages are higher than the statutory range, you can always opt to pursue compensation for your actual harm. From a practical standpoint, however, damages from an infringement can be complicated to calculate and a statutory damages claim can be a great shortcut to coming up with an amount that will encourage settlement before you even get to the courtroom.
Perhaps more important, however, is that the threat of statutory damages and legal fees gives the infringing party a strong incentive to settle before you sue. Just think of how much more powerful your demand letter will be if you can say, "if you don't do what I'm asking now, you are going to get stuck with a large statutory damages award and you'll wind up paying for my lawyer as well as your own."
As discussed more fully below, however, the effective date of registration is the date you send your completed application to the Copyright Office. So as long as you keep good records of your application (and send it return receipt requested so you can verify the receipt date), even if you don't have a certificate in-hand you can still show any infringer that they will be subject to the statutory penalties and therefore nudge them towards settlement.
The bottom line: register your works! The application fee is well worth the statutory benefits alone (not to mention items 2 and 3 below) and any delays at the Copyright Office in issuing a certificate don’t have a major impact on your rights. Moreover, better to get in line now and hope you get a certificate sooner than later rather than having to depend on the expedited process (and its hefty fees) when you actually need to produce your certificate.
(2) Registration is a pre-requisite to enforcing your copyright in court.
You have to register a work in order to seek judicial enforcement of your copyright rights. This includes filing a lawsuit seeking damages for infringement or even just seeking an injunction to get the infringing work removed from circulation. But for the purposes of filing suit, you can file the registration at any time; you don’t have to do so before the infringement occurs (although, as noted above, there are other benefits for doing so).
There are two reasons why any copyright office delays don’t have a fatal impact on registering works for the purposes of filing a lawsuit. First, the statute of limitations for bringing a copyright claim is three years. If you discover an infringement and apply to register your copyright immediately, then even if it takes 2 years to get your certificate you can still file suit in time. Granted, this is less than ideal, particularly if you want to seek an injunction to get the infringing work removed NOW, but it technically doesn’t prevent you from enforcing your rights.
Important Note: Calculating durations for statute of limitations purposes is notoriously tricky—if you think you have an infringement claim you should not delay talking with an attorney in order to best preserve your rights.
The second reason is that there is a way, albeit an expensive one, to move your application to the head of the line. The Copyright Office allows for expedited handling of registrations in certain situations, including when there is a publishing deadline or actual or prospective litigation over the work. The current fee for expedited handling is $760 (plus courier costs to have someone personally deliver the application to the Copyright Office), so your claim had better be worth the extra money. But as with many things, where there’s a checkbook there’s a way. Also, you can still seek expedited handling even if you’ve already sent in a registration to the Copyright Office. You have to re-pay the registration fee on top of the extra handling fee, but at least your work won’t get stuck in the backlog with no way out.
Also important is that the effective date of copyright registration is the date the Copyright Office receives a completed application, not the date they issue your certificate. (A completed application means receipt by the Copyright Office of the application paperwork, payment for the application fee, and the required deposit copies of your work.) While this isn’t helpful in most jurisdictions* when you want to file suit, it is important for the purposes of the other benefits of registration below.
*Most circuit courts—including the 9th Circuit which covers Washington State—require that you have your copyright certificate in-hand in order to file a claim. In a few circuits you only need to have applied for registration.
(3) Registration creates presumptions of ownership and validity of your copyright.
These presumptions can be useful tools in litigation, especially when there are disputes regarding authorship of a work, but here too the copyright office delays don’t necessarily deprive you of these tools. For one thing, the presumptions are rebuttable—evidence that disputes the information on the application can effectively eliminate the tools. Here too, the effective registration date is what is important, not the date you get a copyright certificate, so the delays only serve to delay, not eliminate, an author’s statutory benefits to registration.
Conclusion: Register your works, but don’t wait for your certificate to market them.
For much creative content, timeliness is the key to making money. A song that sounds fresh and new today may sound dated or cliched a year from now. For some authors, it may make sense to seek expedited registration right off the bat (assuming you can show one of the allowed rationales for expedition), but for most it doesn’t make much difference when you get your certificate.
For most, the key to getting the most out of Copyright law is to get in the habit of registering your works on an as-created basis. If you produce a huge volume of work (as many artists do, especially photographers and bloggers), you can set up a process to register your works on a quarterly basis and still fall within the three-month grace period for getting the full staturoty benefits of registration.
As always, you should talk with an attorney to assess your individual circumstances—this article is meant to provide general information, not legal advice. If you have specific questions about your situation, We at Imua Legal Advisors would be happy to talk with you in a free 20 minute phone consultation. Please don’t hesitate to contact us to schedule a time to talk.
Note: I posted most of this content in a previous article specifically addressing some fallacies in the Washington Post article on the backlog at the Copyright Office. I am re-posting this as a stand-alone article since it addresses some of the most common questions we get on copyright law.