by Intellectual Property Attorney Bill Honaker, the IP Guy
Originally Posted December 7, 2021
Updated February 3, 2023
Copyright is a type of IP that gives owners the exclusive right to make copies of a creative work. Protection of copyrights attaches as soon as an idea is expressed in a form that can be reproduced under the Copyright Act. Copyrightable materials include literary or musical work, artwork and computer programs.
Since copyright protection attaches immediately, it’s not necessary to register a copyright. However, it’s a good idea to do so because copyright registration is a prerequisite for filing a lawsuit for infringement.
There are also important benefits to registration, especially if you must enforce your copyright – statutory damages and legal presumptions. If you register your copyright within three months of publication, or before infringement, you can elect statutory damages of $750 to $30,000, and up to $150,000 for willful infringement, at the discretion of the court. By electing statutory damages, you don’t have to prove actual damages – which often can be difficult to do. Courts have also held that registration before or within five years of publication of your work establishes prima facie evidence of the facts stated in the registration certificate. Consequently, in cases of infringement, the court presumes you own the copyright and that the registration is valid. The burden of proof then shifts to the defendant to disprove any facts in the registration, such as ownership.
Copyright infringement is always a risk. If you receive a letter for copyright infringement, it typically describes the statutory damages available, threatens litigation and demands payment. There are strategies to defend against charges or to reduce damages, but the better approach is to not infringe in the first place. Therefore, it is extremely important to be aware of the consequences of clipping copyrighted materials such as images, videos, music or articles.
Intellectual property is one of your most valuable assets, so take steps early to invest in and protect it. If you don’t, there can be significant consequences.
About the Author:
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.