Someone Is Infringing My Copyright, But I Do Not Have A Registration. Now What?

By Daniel Davidson

Unlike a trademark or patent, in the United States, a copyright is automatically created upon creation of the work (i.e. sculpture, sheet music, book, etc.).  Creation, as defined by Title 17 of The United States Code, is when the work is fixed in a tangible medium, copy or phonorecord for the first time.  A copy is a material object from which a work can be read or visually perceived, either directly or with the aid of a machine or device.  There is no requirement in the United States that a copyrightable object be registered with the Copyright Office, but doing so does have a few advantages.

With that in mind, what happens if someone decides that they would like to display a copy of your newly written book, for example on their webpage?  What are your options to combat the piracy?  Your first step in enforcing your rights would be to register the work as soon as possible if you have not already done so.  Copyright registration is a fairly simple process, in most cases, and can even be done electronically at www.copyright.gov.  Not only can you complete and file the application online, but you can also upload the work that you wish to copyright.  All for a nominal price of $35 for the electronic filing of the application and deposit.

Now that you have filed the application and submitted a deposit of the work, you will find out that the turn around from the Copyright Office of your Certificate of Registration is not the fastest.  This will probably make you nervous and, if you care at all about the book you put your heart and soul into, you are in luck.  If this is the case, please have no fear.  Fortunately, the United States Code does not require that you have the Certificate of Registration in hand to access the Courts to enforce your rights.  All that is required is that you fulfill three key elements.  1) you complete and submit the application form, 2) you pay the non-refundable fee, and 3) you submit a deposit of the work. See 17 U.S.C. 408(a) for details.   Therefore, the date on which you have completed the above-referenced steps is considered the date on which you hold a registration.  For example, if you submit the application and fees on July 16, 2010 but you wait until July 30, 2010 to submit the deposit of the work, your registration date is July 30, 2010, for purposes of accessing the courts.

So why do you even need to bother registering your book if the United States Code automatically vests copyright protection on it?    Well, as noted above, to enforce your rights in a court of law, you are required to have a registered copyright.  The registered copyright will allow you access to the system, but also require you to pay bountiful amounts of green toward filing fees and attorney’s fees and costs.  I don’t know about you, but I could think of a hundred other things I would like to put a couple thousand dollars toward.  Anyways, you might not be aware that an award of attorney’s fees and costs may be at your fingertips.  For this to be true, you will need to have a 1) registration date effective before the commencement of the infringement 2) if infringement starts after the first date of publication, you will need to obtain an effective registration date within three months, or 3) if unpublished, you will need an effective registration date before copyright infringement is commenced. See 17 U.S.C. 412 for more details.

To all our faithful readers, please do yourself the favor and protect yourself.  Strap on the boot of registration and give yourself a size ten chance against the unforgiving world.