Russell Gelvin - November 22, 2019 - Copyright Infringement on the Internet, Copyright Law, Digital Millennium Copyright Act Notice, Internet Copyright Infringement, Music Copyright Infringement, Uncategorized, What Is Copyright Infringement
The short answer is, “yeah . . . probably.”
While it is true that copyright protection begins the moment a work is “fixed in a tangible medium,” the Supreme Court ruled earlier this year in Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC that a copyright holder cannot file suit to enforce their rights under the Copyright Act until a completed certificate of registration is received from the U.S. Copyright Office. Prior to this decision, there was a circuit court split on whether you simply needed to file a registration or whether the registration needed to be finalized by the U.S. Copyright Office. The Supreme Court’s decision makes it clear: you must wait for the completed copyright registration.
Not only do you need a completed registration to even enforce your rights in the first place, but copyright registration may also determine what damages you are entitled to receive from an infringer. Under Section 412 of the Copyright Act, in order to receive statutory damages, costs, and/or attorney’s fees in most cases, you must have registered the work prior to the infringement (or in the case of published works, within 3 months of publication if the infringement occurred after publication). Statutory damages are a very potent tool for copyright holders, as they allow you to recover damages regardless of whether you actually suffered losses or the defendant actually made profits off the infringement.
Further, under Section 512 of the Digital Millennium Copyright Act, a completed copyright registration may be necessary to fully enforce your rights on social media and other content sharing platforms. When a copyright holder identifies infringement on platforms like Facebook and YouTube, Section 512 allows them to file a takedown notice with the hosting website. However, an alleged infringer need only file a counter notification under Section 512(3) and the hosting website is required to repost the content unless the copyright holder provides notice that it has filed suit seeking a court order to restrain the infringing activity. Since a completed copyright registration is required to file suit, it stands to reason that full enforcement of a copyright holder’s rights under the DMCA also requires a completed copyright registration.
There are further benefits of registration. Registration creates a presumption of the validity of the copyright (placing the burden on the other side to prove the copyright is invalid). Registration also allows you to establish a record with the U.S. Customs and Border Protection for protection against importation of infringing copies (you can also apply for temporary recordation while your registration is pending with the U.S. Copyright Office). Registration provides a record to the public that you own the copyrighted work, helping to notify would-be infringers of your rights and potentially strengthening your case that the infringement was willful (and therefore subject to a higher damages award). Lastly, in the event you do find yourself having to send out a threat letter to an infringer, having a copyright registration handy will convey a sense that you are serious about protecting your rights and will increase your leverage in negotiating a settlement even if you do not intend to actually sue.
There can be no doubt that copyright registration is a necessary step in protecting your rights as a copyright holder. For any work that holds significant economic or other value which you wish to protect, a copyright registration is highly recommended. For works that you do not particularly value or have no desire to protect, you might want to consider a creative commons or open source license to at least protect yourself, if not the work.