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Technology Transfer

Entrepreneur's Toolkit - Benefits of Copyright Registration

What Is Required for Copyright Protection?

Assuming your work is subject to copyright protection, only two basic criteria are required for copyright protection to vest in your work: originality and fixation. Your work is original if it demonstrates a small amount of creativity and is not just copied from another work. Your work is fixed as soon as it is sufficiently permanent or stable that it can be perceived, reproduced, or communicated for more than a moment. Once your work is fixed, copyright protection automatically attaches to your work.
Importantly, you do not have to register your work or even put a copyright notice on it for protection to exist.

Why Register?

While copyright protects your creative expression as soon as it is fixed in a tangible medium, and while registration with the Copyright Office is not required, obtaining copyright registration for your work provides certain benefits:

  • Your registration establishes a public record of your copyright claim.
  • You cannot file a copyright infringement lawsuit without a copyright registration.
  • If you register your work before publication or within five years of publication, your registration establishes the validity of the copyright and the facts stated on the certificate.
  • If you register your work before infringement occurs or within three months after first publication of your work, you become eligible for statutory damages (no proof of actual damages necessary), attorneys' fees, and litigation costs.
  • You can establish a record with the U.S. Customs and Border Protection for protection against importation of infringing copies.

What Are Statutory Damages?

In a lawsuit to enforce your copyright(s), you might seek injunctive relief (to stop infringement from occurring) as well as money damages (to make you whole). Because it can be difficult or expensive to prove your damages or the infringer's profits, statutory damages provides an alternate route if your copyright was registered within three months of first publication or before infringement first occurred. Statutory damages are a type of damages you can request per work infringed, with the amount of damages set by statute of between $200 and $150,000 per work infringed, depending on the innocence or willfulness of the infringement.

What Should I Register?

Because registration is not necessary for protection to attach, because many works (e.g., your website) change regularly, and because there are costs to register, many businesses are selective about which copyrights they choose to register. Works selected for registration may include:

  • Your business's important works
    • Source or object code for primary software offerings, including major updates
    • Books, movies, songs, albums
  • Occasional compilations of intermediate/minor works, including podcasts, blogs, etc.
  • Works that are being infringed, if you are thinking of suing
  • Your main website (including look and feel)
  • Other important works
  • Unique (creative) product configurations for important products

Examples of works you might select not to register, unless or until infringement occurs:

  • Your website, or individual pages of your website
  • Instruction manuals
  • Individual blog posts
  • Individual advertisements
  • Emails and other communications
  • Product configurations

How Do I Register?

To register your copyright in a work, you must submit 1) an application for copyright registration (by paper form or electronically), 2) the required filing fee, and 3) the required "deposit" (nonreturnable copy or copies of the work being registered). In most instances, it is best to file your application electronically through the electronic Copyright Office (eCO) because the process is faster (e.g., ~1.2 months vs ~4.1 months), you can track it online, the fees are lower (e.g., $45-$65 vs $125), and you don't have to send physical copies of your work to be registered (though physical copies can be sent if desired). Additionally, there are different types of paper application forms for each type of work (the proper one must be used for registration to occur), while the eCO automatically guides you and reformats itself to the correct format for each type of work.

The Application

The application is the place where the applicant provides information about the work to be registered to the Copyright Office, including type of work, the title, the date of publication (if any), the author (or authors) (which may not be the owner) and information about the author(s) and the author's/authors' contribution to the work, the claimant (the owner of the work, who can be the author(s) if no change of ownership has occurred, or can have obtained ownership from the author(s)).

The Fee

The filing fee varies depending on the type of work being registered, the type of claim being registered, the number of authors, and whether the application is being filed electronically or on paper. Additionally, a request for Special Handling (rapid registration, typically where known infringement is occurring, to permit filing of an infringement lawsuit) greatly increases the filing cost (an additional $800 currently). Overall, however, the filing fee for registration is much less than the governmental filing fees for trademark registrations or patent applications.

The Deposit

U.S. copyright law requires two copies of the best edition of each copyrightable work published in the United States be sent to the Copyright Office within three months of publication. Even if you do not register copyright in your work, you could receive a demand from the Copyright Office for such a deposit. When you apply to register your work, you will submit an electronic deposit (one electronic copy) or a separate physical deposit (two physical copies). The Copyright Office's Circular 7D explains more about the deposit requirement.

Hire an Attorney or Do It Yourself?

Registering a copyright is a relatively straightforward proposition, especially once you've done it once or twice and especially if you use the electronic Copyright Office (eCO) to prepare your filing. While you can certainly pay an attorney to file an application for you, copyright applications lend themselves to doing it yourself more than other forms of intellectual property.