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When To File Copyright
When Should You Register Your Copyright? - The quick answer is...No later than the end of the third month after first publication of your work.
The Detailed Answer - Technically speaking, you never need to register your copyright with the copyright office. But the technical answer is certainly not the prudent answer. Copyrights are not dependent on registration with the copyright office. Copyrights arise upon fixation of an original work of authorship in a tangible medium of expression.
Registration Is Not A Condition of Copyright Protection - Section 408(a) of the Copyright Act specifically provides that "such registration is not a condition of copyright protection."
Timely Registration Is A Prerequisite To Statutory Damages and Attorney Fees - Although registration is not a prerequisite to copyright protection, timely registration is required in order to take advantage of certain advantageous copyright act remedies including statutory damages and attorney fees. These statutory remedies are extremely important to enforce your copyright claims and are dependent upon timely registration of your copyright registration.
Importance of Statutory Damage Provisions - In the usual case of copyright infringement, there is a two step process. First, you must prove that a party infringed upon your copyright by violating one of the exclusive rights that your have as the owner of a federal copyright. After you prove infringement, you must then prove how you were damaged by the infringement. Proving actual damages can be the more difficult part of the case. Damages can be very expensive to prove. Additionally, in many instance where you have legitimate rights to claim infringement, your actual damage may be uncertain or minimal. The cost of proving damages can far outweigh the actual damages you are able OT prove. Normally, attorney fees of the action cannot be recovered. The high costs of proof and inability to recover attorney fees makes it unlikely that infringement actions would ever be economically feasible in the most cases where actual damages are difficult to prove or are a low amount.
Enter the copyright act's statutory damages and attorney fee provisions. If statutory damages are available, you need only prove infringement. You can then opt to recover damages that are set by statute. These damages are up to $25,000.00 per violation or up to $100,000.00 per violation if you prove that the infringement was willful. You can also obtain attorney fees for bringing the infringement action.
File Registration Before First Date Of Publication - In order to elect to take statutory damages, you must have filed your copyright registration before the end of the third month after first publication of the work of authorship. Section 412 of the Copyright Act states: "...no award of the statutory damages or of attorney fees, as provided by section 504 and 505, shall be made for - (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."
In order to determine when you should file your registration, you must first determine when your work was first published. The most prudent course of action is to file your registration before you publish the work. If your work has already been published, you should determine the date of first publication and file your application no later then the end of the third month after that date.
The copyright act and case law developed thereunder define when a work has been published. When planning up front to determine when to file your application, always take the most conservative view of when publication occurs. Pick the earliest date that your work could have been made available to the public.
The bottom line, in order to preserve the availability of all remedies, always register your copyright at the earliest possible date.
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