Copyright Laws Do Not Require You To Mail Anything
A common misperception is that something must be done for Copyright protection to exist, e.g. mailing the work to yourself or registration with the United States Copyright Office. This is false. In fact, copyright protection automatically exists from the moment of creation for any work that satisfies the originality and fixation requirements. However, although copyright protection automatically exists, and although copyright registration is no longer required to protect a published work, there are significant benefits for the copyright owner to register his or her copyright.
Regretfully, many copyright owners neglect to obtain copyright registration for their creative works. The reasons often given run the spectrum from "It's not required," "I don't want to spend the $30 registration fee," "I don't have time," "I can't afford a lawyer to review or prepare my application," to "I forgot." Although the copyright owner may have spent significant time and expense to create and/or publish the creative work, failure to timely register the copyrighted work can have severe unintended consequences. It can preclude the copyright owner from pursuing specific remedies in the event the work is copied and infringed, and may even prevent the bringing of a lawsuit absent the payment of an additional $500 to the Copyright Office for an expedited filing.
Benefits To Registering Your Copyright
The copyright owner should register a work in a timely manner for the following three reasons: (1) ability to sue, (2) eligibility for statutory damages and potentially attorney's fees and costs and (3) prima facie evidence of ownership. The effective date of copyright registration is the date when the Copyright Office receives the complete registration application that consists of the application, fee and deposit copies. To be timely, the copyright must be registered either: (1) within three months of the sate of first publication or (2) before any copyright infringement occurs.
Copyright Owner's Ability to Sue
First, in the United States, copyright registration is a prerequisite for bringing a copyright infringement lawsuit. Yes that's right! A copyright owner cannot proceed with a copyright infringement lawsuit unless the work has been formally registered with the Copyright Office. So then you might ask, why spend the time and money in registering the work before an infringement occurs? Well, delay at a minimum could cost the copyright owner a significantly higher registration fee (up to $500) to expedite the registration of the work so that the lawsuit could be filed. Delay can also prevent the copyright owner from seeking a preliminary injunction to stop the ongoing infringement. And delay may even preclude the economic feasibility of bring a lawsuit since failure to register prior to the infringement taking place precludes an award of statutory damages. Practically speaking, failure to register in a timely manner can make it difficult, if not impossible, to enforce your rights as the copyright owner.
Statutory Damages For Copyright Infringement
Second, if the copyright owner timely registers his or her copyright before infringement occurs, or within 3 months from the publication date of the original work of authorship, the copyright registrant will be eligible for "statutory damages" and "legal costs and attorney's fees". So why is this so important? Absent the right to receive statutory damages, the copyright owner may be restricted to actual loss (which could be nominal). In addition, the costs associated with bringing an infringement case will probably be significantly more than what the court will award in damages. As a consequence the copyright owner will be hard pressed to find an attorney to take such a case on a contingency or even partial contingency.
Statutory damages permit the court to award special damages in a successful infringement lawsuit which can relieve the copyright owner from the duty of proving actual damages and bearing all of the costs and attorneys fees when bringing such a suit. Actual damages are generally very difficult to prove and in many instances the profits of the infringer are very small. Consequently, the inability to seek statutory damages will often preclude the copyright owner from bringing a cost-effective lawsuit. The statutory damages which may be awarded is discretionary, and can depend on how willful and harmful the infringement was-- usually the more deliberate and more damaging the infringement, the greater the award. By registering the work in a timely manner the court also has the discretion to award attorney's fees and legal costs to the copyright owner.
Prima Facie Evidence Of Copyright Ownership
The third reason for registering a copyrighted work in a timely manner is that the Certificate of Registration serves as prima facie evidence that the work is original and is owned by the registrant. What does this mean? It means that you do not have to prove that your work is original or that you are the owner of the registered work. This is crucial when a copyright owner seeks to obtain a preliminary injunction against a copyright infringer. A preliminary injunction can request the immediate cessation of the distribution of the infringer's work. However, the presumption of validity will only apply if the work has been registered within five years of its first publication date.
The benefits received from registering a copyrighted work may be even more important than those resulting from a copyright infringement lawsuit. Why? Because the majority of copyright infringement lawsuits are settled. So why do the parties settle? Well, because such lawsuits involve a significant amount of time, cost, and money and when the work has been properly registered in a timely manner, the copyright owner has the ability to bring the lawsuit immediately, to send a "cease and desist letter" to the infringer that incorporates demands that are backed-up by the knowledge that a lawsuit could be immediately filed and that the (i) validity of originality and ownership will be presumed, (ii) statutory damages may be awarded, and (iii) legal costs and attorney's fees may be recovered. When a copyright infringer receives such a cease and desist letter they will frequently accede to the copyright owner's demands without the copyright owner filing a lawsuit.
Recommendation: Properly register the copyrighted work within three months of its first publication.