Copyright Registration is the Ultimate Insurance Policy for Creatives
By Bill Honaker, The IP Guy
Copyright registration provides creative people with two key benefits. Copyright protection attaches immediately, automatically. But to enforce your copyright, it must be registered with the United States Copyright Office. It’s required before you can file a lawsuit for infringement. Registration also gives you the option to elect statutory damages, which can be critically important in copyright infringement litigation. To do that, you have to file your copyright registration in a timely manner.
A recent case from the United States District Court for the Southern District of New York, Lane Coder Photography, LLC v The Hearst Corporation & Yahoo Inc., highlights this requirement. It also shows what can be lost.
Lane Coder is a professional photographer, and owner of Coder Photography. He was hired by Sotheby’s to take pictures of Paul Simon’s home in Connecticut. Sotheby’s used them to advertise the home for sale.
Hearst Corporation copied some of these pictures from Sotheby’s advertisements and used them in a magazine article about Paul Simon’s home in two different publications. Then Yahoo obtained the pictures from Hearst, and also used them in an article about Simon’s home.
Coder sued and requested damages. There are two categories of damages in a copyright infringement case. The first is actual damages suffered by the copyright owner, plus any additional profits received by the infringer. The second is statutory damages, which can be $750 to $30,000 per infringement, and up to $150,000 for willful infringement, all at the discretion of the court.
Proving actual damages can be difficult, so statutory damages can give you a lot of leverage to press for a settlement. But to get statutory damages, you have to timely file your copyright registration. You can also get your attorney fees awarded by the court, but only if the copyright was registered.
Hearst and Yahoo filed a motion to preclude statutory damages and attorney fees because Coder had not timely registered his copyright.
To be entitled to statutory damages and attorney fees you must register your copyright:
- Before any infringement, if it’s an unpublished work, or
- If it’s a published work, before any infringement, or within three months of the publication date.
The court found the Coder had not registered his copyrights within this window, and struck down his ability to claim statutory damages and attorney fees in this case. This was a huge blow that could have easily been avoided.
The Takeaway:
Register your copyrights now! It’s a quick, inexpensive, and painless process. It’s required to bring a copyright infringement lawsuit, and to be eligible for statutory damages and attorney fees. Copyright Registration is the Ultimate Insurance Policy for Creatives.
If you have any questions or would like help with registration of your copyrights, please click the link below.
Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter click here.
To get answers to your questions click here. To schedule a time to talk, email Bill@IPGuy.com, or give him a call at 248-318-7015. You can find more articles about IP, patents, trademarks, and trade secrets at IPguy.com.