Under the current copyright law, copyright subsists in original works of authorship from the moment of creation and fixation. Registration is permissive rather than a statutory formality, and a work may be registered at any time within the life of the copyright. Although registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration, including:
- registration establishes a public record of the basic facts of a copyright claim;
- for works of U.S. origin, registration is necessary before an infringement suit may be filed in court;
- if made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate;
- if registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner;
- registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
McHale | Slavin has advised many clients concerning the benefits of registration and is experienced in prosecuting claims before the United States Copyright Office. Whether a literary, visual, musical work, or sound recording; whether a computer program or database; whether a vessel hull or a mask work – our attorneys and legal professionals are experienced in guiding you through this administrative process and securing registrations for your claims. In addition to assisting our clients in the prosecution of their claims to copyright, we are also experienced in defending our clients’ exclusive rights as copyright owners if that need arises. Contact us for additional information or to schedule a consultation.
McHale & Slavin conducts comprehensive searches for our clients to determine the copyright status and ownership of copyrighted works. The search process entails investigating whether a work is currently under copyright protection. It may include determining a work’s publication history and authorship information, copyright registration and status, and whether assignments or other documents relating to the work have been recorded. The process often involves searching not only the original records of registration and renewals but also various indexes relating to records of assignments and other documents affecting copyright ownership. If there is imminent or ongoing litigation, a search may extend to inspecting copies of copyright deposit material and reviewing correspondence between the applicant and the U.S. Copyright Office.
Investigating the copyright status of a work requires understanding the subtleties of statutory enactments including the Copyright Act of 1976, the Berne Convention Implementation Act of 1988, the Copyright Renewal Act of 1992, and the Sonny Bono Copyright Term Extension Act of 1998. The process often includes searching not only the original records of registration and renewals but also various indexes covering the records of assignments and other documents affecting copyright ownership and, if appropriate, inspecting copies of copyright deposit material and reviewing correspondence between the applicant and the U.S. Copyright Office.
The lack of a registration is not presumptive of lack of protection. Works may have entered the pubic domain for any of a number of reasons. Certain works (e.g., titles, ideas, government works) are not protectable under the copyright laws. Under the copyright law in effect prior to January 1, 1978, copyright could be lost if a work was published without the requisite notice of copyright, if the first 28 year-term of copyright expired without renewal, or at the end of the renewal term. Even if a work may be in the public domain in the United States, it may not necessarily be freely used in other countries. Each nation has its own copyright laws governing the scope and length of protection. The duration of copyright protection varies as well – generally, the term of protection for works created on or after January 1, 1978 is based on the life of the author plus 70 years after the author’s death.
The domestic and international copyright laws and regulations are complex and our firm is expert in its understanding of those complexities and advising our clients accordingly. We can negotiate contracts, rights and permissions, and licenses based on the results of the searches we conduct. Contact us for additional information or to schedule a consultation.
McHale & Slavin has extensive knowledge and experience in copyright litigation which, because of its potential complexity and the strength of the remedies provided for infringement, takes on major importance for any litigant in these cases. We have many years of experience successfully representing both plaintiffs and defendants, and bring our valuable understanding and depth to the needs of clients involved in copyright disputes.
In general, an infringer of copyright is liable for either: (1) the copyright owner’s actual damages and any additional profits of the infringer; or (2) statutory damages.
Actual Damages and Profits
The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
The copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.
In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.
Because the protections of copyright law and the remedies for infringement are among the most powerful of any area of the law, our knowledge and understanding in this field allows aggressive and focused representation, including the critical element of financial compensation and when appropriate, preliminary injunctions and enforcement remedies through U.S. Customs and other emergency relief. In defending against infringement allegations, the Copyright Laws’ recognition that the right to fair use is as important as the protection of the author’s rights in creation is often a critical issue. An understanding of the scope of any copyright protection and the actual nature of accused infringement allows us to defend lawful activity in the context of copyright infringement litigation. Contact us for additional information or to schedule a consultation.
The U.S. Copyright Office has specific procedures regarding administrative review of the Office’s refusals to register a claim to copyright.
Although the Copyright Office registers the vast majority of claims that are submitted, some claims will not meet the necessary threshold for registration. For example, the Office may determine upon initial examination that material deposited does not constitute copyrightable subject matter or does not comply with other legal requirements. In such cases, the Office refuses registration and notifies the applicant in writing of the reasons for the refusal.
After receiving notice of rejection, an applicant may appeal the refusal to register. There is a two level administrative reconsideration process. The decision at the second level – the Copyright Office’s Review Board – is considered a final agency action. The Office may either uphold its refusal to register or decide that the applicant’s work is registrable.
Our firm understands the intricacies of the registration process and is facile in drafting requests for reconsideration. Contact us for additional information or to schedule a consultation.