Registration requires filling out some forms and paying a small fee of $35.  To avoid errors, an attorney specializing in copyright law can be employed to prepare and file the application for registration, which may cost a couple hundred dollars. Why go to the trouble if copyrights arise automatically?  The answer is that copyright registration bestows many powerful benefits on a copyright owner.

Ability to File Suit

First, copyright registration allows a copyright infringement suit to be brought.  If your copyright is not registered, you cannot enforce it in a court of law.  It may be unlikely that you will have to sue to enforce your copyright, but if it does happen you will want to put a stop to the infringement right away, without having to wait months for your registration to make its way through the Copyright Office. In the meantime, the infringer could be making and selling thousands more copies of your work.

Even if you would decide in the end not to sue, having a registered copyright gives you tremendous leverage in negotiations with an infringer and discourages infringers from copying your work in the first place.  Registration shows the world that you are serious about your creative work and about protecting it and helps you to obtain favorable settlements without having to resort to lawsuits.  And you never know how you will feel if someone rips off your work, passes it off as their own, and distributes it with great success.  You may just want to sue, after all.

Enhanced Damages

Registering your copyrighted work within three months of publication or before infringement occurs entitles you to collect statutory damages and legal costs and attorney’s fees.  Since there is no way for you to know when an infringement will take place, it is a very good  idea to register your work within three months of publication.

Statutory damages are special damages in an amount specified by copyright law- $750 to $30,000 per work.  They do not require the copyright owner to prove any lost profits or other actual damages.  Being entitled to statutory damages is an enormous advantage.  It is often difficult to prove the extent of actual damages, which may in monetary terms be fairly low.  With statutory damages, the amount of damages awarded is at the discretion of the court and depends on factors such as how willful and harmful a copyright infringement is.

The difference between actual provable damages and statutory damages can be vast.  In one exemplary case, an actual damage award of $1,050 was revised upwards to a $30,000 statutory damage award.  In cases where the copyright owner can prove willful (deliberate) infringement, this damage award may be increased to up to $150,000!

In addition, attorney’s fees and legal costs for a copyright ifnringement lawsuit can add up to a substantial sum- $10,000 or more in some cases.  If you register your copyright in a timely fashion, the court will have the discretion to make the infringer pay for all of these expenses on your behalf.

Evidentiary Value

If a copyrighted work is registered within 5 years of publication, your registration serves as prima facie evidence that your copyright is valid, that you are the owner of the copyright, and that all the information on your registration certificate is accurate.  If an alleged infringer wishes to challenge any of the information on your certificate, he must meet the burden of proving that it is inaccurate.  This presumption can be very helpful if you need to obtain a quick preliminary injunction from a court to immediately put an end to the continued infringement of your copyrighted work.

Customs Enforcement, Public Record

Your copyright registration can be recorded with the U.S. Customs Service, which enables you to obtain the help of Customs in preventing the importation of goods that infringe on your copyrights.  Registering your copyright also creates a public record of your work, putting the world on notice of your creation and in many cases enabling the world to come and see it at the Library of Congress.

So, there are many good reasons to register your creative work in a timely fashion.  Keep an eye out for more posts on copyright law.  Do you have any questions about the copyright process?  Any stories you want to share about copyright infringement?  Please leave them in the comments below.

Even if you plan the work in great detail before passing it off to another person to implement, that other person is likely to have copyrights in the resulting work.  For example, if you went to a computer programmer to code some software for you and gave him complete flowcharts of how you wanted the program to operate, the programmer would still have copyrights in the resulting code that he wrote.

The Employee Exception and Independent Contractors

An exception to this rule is that a work made by an employee within the scope of employment is considered a work made for hire and the copyrights to such a work accrue to the employer and not the employee. So, if you run a software company and have programmers that work for you in your offices on a full-time basis, the copyrights to their code will generally accrue to your company and not the individual employees.

The problem for a lot of smaller businesses is that the law distinguishes between an employee and an independent contractor.  The copyrights for works made for you by independent contractors generally belong to the independent contractor and not to you.  That means you could contract with a freelance programmer to produce software for you according to your specifications, only to find that you are not allowed to make any copies of the program or sell the copies to your customers without the contractor’s explicit permission!

The difference between an employee and an independent contractor is not always crystal clear and there are a number of factors that a court would consider when determining the nature of the creator of a work.  These factors include the degree of control exercised by the employer over the work that was done and over the worker, whether the working space and tools are provided by the employer or by the worker, how the worker is paid (salary vs. one-time fee), etc.  In many cases, it is clear which category the worker falls under.

The Work-for-Hire Agreement

If the creator is an independent contractor, copyright will accrue to the contractor unless 1) the parties explicitly agree in writing that the work is a work made for hire and 2) the work falls within one of 9 statutory categories of works under the Copyright Act.  The statutory categories include works specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.

Therefore, if you may be working with an independent contractor it is always a good idea to have them sign a work-for-hire agreement before beginning work.  This agreement should contain the explicit work made for hire agreement required and should also contain provisions guarding against the possibility that the work will be deemed not to be a work made for hire at some point in the future.

So the agreement should state that both parties agree that the work is a work made for hire falling under one of the statutory categories, but also that in the event it is determined not to be a work for hire, the agreement will function as a transfer of the copyright from the contractor to the employer.  The contractor should also agree to complete any paperwork necessary to fully transfer all rights in the work throughout the world.  Other provisions should also be included, such as an agreement by the contractor to waive any moral rights in the work.

If you plan to contract out with another party to produce a creative work, such as software, a website, some text, or a prototype or sample, you should use a work-for-hire agreement.  Contact your IP attorney to discussyour particular needs and to have such an agreement drafted for your use.