Monthly Archives: August 2011

Copyright Registration as a Strategic Tool

“Statutory damages” is a remedy that strengthens the hand of copyright owners against infringers. Infringers may take advantage of the difficulty, expense, and delay of having to file suit to use as a bargaining chip. Statutory damages decrease the value of this bargaining chip, and can help a copyright owner reach a desired result without having to file suit.

In a copyright suit, the copyright owner must prove copying and must also prove economic loss. The connection of the owner’s loss to the infringer’s actions must be demonstrated. The amount of loss must be proven. The accounting method used and many other factors may be raised by the infringer to “muddy the waters.” Each additional complication adds to the cost of proving damages. Once a case is completed, appeals are possible based on the calculation of damages.

If the copyright owner has qualified to seek statutory damages, only copying need be proved. The legal requirements for proof are comparatively well defined. In the absence of special circumstances, the award ranges from $750 to $30,000, in the court’s discretion, for each work infringed. The number of copyrighted works infringed, not the number of copies, determines the amount of statutory damages. However, if infringement is willful, the award may be increased to a maximum of $150,000. Demonstrating that the infringement is innocent may reduce the award to as low as $200.

The court has discretion to award attorney’s fees to the prevailing party. A copyright owner seeking statutory damages is more likely to be a prevailing party. The infringer runs a greater risk of having to pay attorney’s fees. Increased liability exposure may encourage an infringer to compensate the copyright owner without the necessity of a suit. Even if suit is necessary, it will be simpler and less expensive. There have been situations in which an infringer capitulated early on.

Statutory damages are available when a copyright is registered prior to the infringement. The statue says when the registration application must be filed. It is simplest and most reliable to file a copyright registration application on a work when the work is published. Prompt registration provides a copyright owner a much stronger position against future infringers.

Copyright registration is accomplished by filing the appropriate application. Different types of works, e.g., text, three-dimensional works, or music, require different application forms, each requiring a filing fee of $35.00 – $65.00.  Consultation with counsel may help in making strategic choices such as deciding how many items to include in one registration application.

Many copyright owners have sought advice of counsel after discovering infringement only to find out that their options were limited. The relatively low-cost of copyright registration at the time of publishing can strengthen the copyright owner’s legal position when infringement is later discovered.