Copyright is “automatic” in that it exists as soon as an original work of authorship is fixed in a tangible medium, e.g., when you put paintbrush to canvas, record a song to digital audio file, or capture a photograph on film. Since copyright protection is automatic and registration is not required, why take the extra step to register your work with the U.S. Copyright Office? One key reason is because prompt registration can provide significant advantages when infringement arises. Below are seven reasons to register your copyright now.
Registration is required to file a copyright infringement lawsuit. In order to sue for copyright infringement, the copyright must be registered. Except for a few narrow exceptions, registration with the U.S. Copyright Office is a prerequisite to filing a lawsuit for infringement of a U.S. work. See 17 U.S.C. § 411(a) (“no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made”). Simply filing an application is not enough—a registration must be granted (or denied) by the Copyright Office. And postponing the filing of a copyright application until an infringement dispute arises may leave you waiting—sometimes for months—for the Copyright Office to process the application before you can file suit against the infringer. Recently, the Copyright Office has taken an average of four months to process a registration, but it can take as long as 11 to 22 months when correspondence with the registration specialist is required. While registering as soon as possible is advantageous, even a “late” registration (i.e., obtained after infringement has begun) is beneficial because once a registration issues, a copyright owner can sue for infringement that occurred both before and after registration. If you urgently need to enforce an unregistered copyright, you can expedite your application for an additional fee by requesting “special handling” and stating that registration is necessary for pending or prospective litigation, but this can be costly.
Copyright owners who register their work within five years of publication have a presumption of validity in litigation. In an infringement suit, a copyright owner must establish (1) ownership of a valid copyright, and (2) copying of the original elements of the copyright. If registration was obtained either before publication or within five years of publication of the work, the registration certificate will constitute prima facie evidence of the validity of the copyright and the facts stated in the certificate (e.g., the author and date of completion). This means that rather than having to prove that you are the owner of a valid copyright, the court will presume that you satisfy the first element of copyright infringement and it will fall to the defendant to show otherwise. This presumption of validity can be especially advantageous when seeking immediate injunctive relief, such as a TRO or preliminary injunction.
Timely registration enables copyright owners to recover statutory damages, attorneys’ fees, and costs for post-registration infringement. Early registration also enables a copyright owner to seek statutory damages, attorneys’ fees, and costs for infringement that occurs after the effective date of registration. Under the Copyright Act, an infringer is liable for either (1) actual damages and any additional profits of the infringer, or (2) statutory damages in an amount set by a court between $750 and $30,000 for each of plaintiff’s copyrighted works infringed. 17 U.S.C. § 504. Statutory damages are sometimes preferable because actual damages and additional profits can be difficult to prove. A court can also increase an award of statutory damages to up to $150,000 when a defendant’s infringement is found to be willful. 17 U.S.C. § 504(c). However, statutory damages—as well as attorneys’ fees and costs of the litigation—are available only for infringement that commenced after the effective date of registration. 17 U.S.C. § 412. This means that a plaintiff who registered its copyright on January 1, 2020 would be limited to seeking actual damages and additional profits for infringement that began before January 1, 2020, but will have the option to seek statutory damages for infringement that began after January 1, 2020.
Registration is a prerequisite for obtaining exclusionary relief from the International Trade Commission. Other than federal litigation, copyright owners can enforce copyrights under Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, but a U.S. registration is still a prerequisite. Under Section 337, the owner of a U.S. copyright registration can petition the International Trade Commission (“ITC”) to open an investigation into infringing works imported into the U.S. and seek an exclusion order to stop those infringing goods from entering the country.
Copyright registration holders may record their copyright with the U.S. Customs and Border Protection to stop infringing copies at the border. Copyright owners can maximize their protection against infringing copies at the border by recording their registered copyrights with the U.S. Customs and Border Protection (“CBP”). See 19 CFR § 133.31 et seq. CBP is authorized to exclude, detain, and/or seize imported goods at the border that infringe recorded copyrights. While federal regulations indicate that copyright claims must be registered to be recorded with CBP for import protection (19 CFR § 133.31(a)), CBP’s Intellectual Property Rights Electronic Recordation System accepts online applications for temporary recordation of unregistered copyrights while an application for registration is pending at the Copyright Office.
Copyright registration creates a public record. An immediate benefit of copyright registration is the creation of a public record that puts the world on notice of your copyright claim. Key facts stated in the certificate of registration, such as the type of work, author(s) and claimed authorship, copyright claimant(s), title of the work, date of creation, and whether the work is published or unpublished, are available in the Copyright Public Records Catalog (1978 to present). Copyright owners also have the option to include in their registration the name and contact information for the person or organization that will handle rights and permissions requests. Providing this information makes it easier for third parties who wish to license a work reach the appropriate person.
Registration is a condition to obtaining the benefit of constructive notice of transfer documents recorded in the Copyright Office. Documents that “transfer copyright ownership,” such as assignment agreements and exclusive licenses, as well as “other documents pertaining to a copyright,” such as nonexclusive licenses or powers of attorney, may be recorded in the U.S. Copyright Office under Section 205 of the Copyright Act, 17 U.S.C. § 205. Recordation is optional but often desirable because it confers certain legal benefits. One benefit recordation provides is constructive notice to the public of the facts stated in the recorded document, which means that members of the public are deemed to have knowledge of the facts stated in the recorded document and cannot claim otherwise. However, the constructive notice benefit applies only if the work is registered and the recorded document specifically identifies the work. 17 U.S.C. § 205(c).
Although copyright registration is optional, copyright owners should consider registering their copyrightable works sooner rather than later to take full advantage of the benefits conferred by registration, especially if infringement is a concern.
 A limited exception applies in relatively uncommon circumstances when a work is infringed almost immediately after it is first published. In these cases, which typically involve highly anticipated and immediately popular works, a copyright owner can recover statutory damages, attorneys’ fees, and costs for infringement that began within three months after publication of the work, provided that registration is made at some point within those three months. 17 U.S.C. § 412(2).
 U.S. Customs and Border Protection, Intellectual Property Rights e-Recordation, https://iprr.cbp.gov/ (last accessed May 6, 2020).
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.
Vivian Cheng is an Associate in Fish & Richardson’s New York office. She focuses her practice on trademark, trade dress, unfair competition, and copyright litigation. Her experience also includes representing trademark owners in opposition and cancellation proceedings before the U.S. Trademark Trial and Appeal Board, patent...