What’s The Best Way To Protect My Ability To Seek The Recovery Of Damages And Attorneys’ Fees For Co
- By Frank Santo
- Mar 1, 2017
- 3 min read
The short answer to the above question is to file a copyright application with the U.S. Copyright Office in Washington, D.C. before infringement occurs, or, in the case of published works, within three (3) months of publication. Doing so provides a copyright owner with the opportunity to recover statutory damages and attorneys’ fees for copyright infringement. A further explanation is provided below.
The federal copyright law is found in Title 17 of the United States Code. Copyright law protects an original work of authorship that is fixed in a tangible medium of expression. Protectable works include literary works, musical works, dramatic works, pictorial, graphic and sculptural works, motion pictures, sound recordings, architectural works and other items. It is also true that registration of a work with the U.S. Copyright Office is not a pre-requisite to securing a copyright.
However, federal copyright registration is important for a number of practical reasons. For example, no civil action for infringement can be brought until preregistration or registration of the work has been made with the U.S. Copyright Office. 17 USC §411(a). In addition, the timing of registration can be important for another reason-whether the copyright owner may recover statutory damages and attorneys’ fees. Under 17 USC §504(a), a copyright owner is entitled to recover either the copyright owner’s actual damages and any additional profits of the infringer or statutory damages. If the copyright owner has difficulty or is unable to prove its’ actual damages, the statutory damages available under 17 USC §504(c) may prove invaluable.
11 USC §504(c)(1) states that except as provided in §504(c)(2), a copyright owner may elect, at any time before final judgment, to recover, instead of actual damages and profits, an award of statutory damages for all infringements with respect to any one work of not less than $750 or more than $30,000 as the court considers just. In addition, §504(c)(2) provides that the court may award a copyright owner statutory damages of up to $150,000 if the copyright owner proves, and the court finds, that the infringement was committed willfully. On the other side of the coin, if the infringer proves, and the court finds, that the infringer was not aware and had no reason to believe that his or her acts constituted infringement, the court may reduce the award of statutory damages to not less than $200. The court also has the discretion to award reasonable attorneys’ fees and costs to the prevailing party. 17 USC §505.
However, even assuming infringement exists, a copyright owner is not entitled to recover statutory damages or attorneys’ fees unless they have met certain requirements. In particular, 17 USC §412 provides that a copyright owner is not entitled to recover statutory damages or attorneys’ fees unless they have registered the work before the infringement, or, with respect to published works, registered the work within three (3) months after the first publication of the work. In general “publication” is the distribution of copies of the work to the public by sale or other transfer of ownership, by rental, lease or lending or offering to distribute copies to a group of persons for purposes of further distribution, public performance or public display. 17 USC §101.
The moral of the story is that a copyright owner should promptly file for a federal copyright registration to protect their right to seek recovery of statutory damages and attorneys’ fees. Retaining this option can also increase one’s bargaining power for a settlement with the infringer, either before or after litigation is pursued.
Of course, even if a copyright owner is not entitled to recover statutory damages or attorneys’ fees because a copyright application was not timely filed, the copyright owner can still recover their actual damages. However, as noted above, actual damages need to be proven. This may necessitate the expenditure of significant time and expense, including the retention of expert witnesses to testify on the issue of damages. Consequently, copyright registration is important, if nothing more than to provide a copyright owner with optional ways of proving damages (and potentially recovering attorneys’ fees). After all, having options is a good thing.
If you have questions about the recovery of copyright infringement damages, please contact us at 316-689-4245 or visit https://www.santolaw.com/contact
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