Copyright Infringement

This article discusses the importance of registering copyrights in order to provide business owners and authors significant benefits, including statutory damages and reimbursement for attorneys’ fees, in the event someone infringes on their copyrights.

A vital asset of many businesses consists of copyrights. Title 17 of the United States Code, commonly known as the federal Copyright Act, governs most copyright law issues. Section 102 of the Act provides that a copyright exists in original works of authorship fixed in any tangible medium of expression. The Copyright Act further states that works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.


A copyright owner automatically obtains copyright protection under this set of laws when their work is authored and published. Copyright protection consists of a bundle of exclusive rights afforded to the owner of the copyright:

(1) to reproduce the work in copies;

(2) to prepare derivative works based upon the work;

(3) to distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) to perform the work publicly;

(5) to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Id. at §106.

However, while federal registration of copyrights is not mandatory in order to obtain copyright protection, for works that originate in the United States and certain other works, a party must have registered the work before the party can commence an action for infringement. As indicated in §411 of the Act: “No action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.”

In addition to being a prerequisite for filing suit for infringement, a federal copyright registration provides a copyright owner with significant exclusive benefits. First, a registration establishes a public record of a copyright claim.  Along with the appearance of a copyright notice (not required but generally recommended), registration can potentially defeat a claim by an infringer that the infringement was “innocent,” thereby increasing the damages an owner might obtain in an infringement case.  Id. at §401 (d).  Second, if the registration is made within five years from the date the work was published, the facts in the certificate are deemed “prima facie” evidence of those facts.  Id. at §410 (c).  Finally, if the registration is made within three months after first publication of the work or prior to an infringement of the work, statutory damages and attorneys’ fees are made available to the copyright owner in court actions. Id. at §412.

These benefits can be extremely important, in part, because statutory damages can range anywhere from $750.00 up to $150,000.00 per act of infringement. Id. at §504 (c). Without the statutory damages, a claimant must prove actual damages, which can be quite difficult in infringement cases, especially if the claimant cannot provide evidence of a record of previous earnings, along with the loss of such earnings, or some other admissible evidence of provable damages.  The ability to obtain statutory damages eliminates the need to prove actual damages altogether.  In addition to the ability to collect statutory damages against an infringer, a copyright owner who has registered their copyright as set out in the Act may collect their attorneys’ fees incurred in protecting their copyright against an infringer—another potentially significant economic consideration, as well as providing the owner with critical bargaining power to compel settlement of their claim and eliminate the need to go to trial.

Therefore, the cost of registering a copyright can far outweigh the benefits and rights conveyed to a copyright owner by registering their copyrights. To receive the greatest possible protection in a case of infringement, it is vital to initiate a federal registration of your copyright as soon as possible after your work is created. If you would like to register your copyright, or if you are involved in a copyright infringement matter, you should contact an experienced attorney to discuss these matters. The knowledgeable and trusted copyright and trademark attorneys at Gehres Law Library are committed to assisting business owners and authors to protect their intellectual property rights. Contact us today for additional information or to schedule a complementary evaluation of your intellectual property law matter or browse our website for more information.