By Kohel Haver
If you have created original material or a creative expression of some sort and later come to see me, I almost always ask you to register your copyright. This is true if we are negotiating a publishing agreement, creating and licensing artwork, starting a large sculpture commission project, signing a recording contract, licensing web design work, or sending off your script. It has been my practice for many years and I have never regretted the decision, even with the most reputable licensee.
Do the benefits of registering copyrights outweigh the cost?
Without a copyright registration, you are limited to state law, state court, and a state claim for a breach of contract. Every state handles contract issues a little differently. There is no presumption that the work belongs to the author, and because of this, the author will have to prove the work belongs to them. Unless your agreement provides for it, there is no guaranteed path to cover your attorney fees and there are no presumed damages that a judge can apply.
On the other hand, a copyright is covered by a uniform Federal law − Title 17 of the United States Code. Federal law is the same in all fifty states. The benefits are simple and very powerful especially to a copyright litigator. A registered copyright is a real weapon when you want to enforce your copyright. A copyright entitles the author of the work to monopoly control of the duplication, modification, performance and of the work. You can demand that an unauthorized copy of a work that appears on a web site be removed or the poster will be liable for copyright infringement. The owner of a registered copyright is entitled to a few additional very important bonuses and these bonuses exist because the law is written to encourage registration. While one does have a legal copyright in original creative expression without the registration the copyright is subject to a slightly different law because you do not get the bonuses.
The bonuses you get as the author are several. You get the legal presumption that the work belongs to you, if you go to court you can ask the court for up to $150,000 per infringement. You can also ask the court to recover your attorney fees and you can petition the court for an injunction to stop the other party from doing harm to you. There is one more bonus: if there is a dispute with a registered copyright the dispute is a matter of federal law to be decided in the federal courthouse. As a copyright lawyer this is a significant advantage – we like the federal court system.
I’ll share the facts on a recent case in my office. The client was in the middle of design project for a large company, the work was not yet published. The company had stopped sending regular checks demanding that the contract be changed. When the client and I met, I had the client register the copyright in the work as insurance that we would have a better alternative should the matter not get resolved. The negotiation with the company continued for several months. The issues were that the artist needed to be paid for the work done and, ultimately, if and how the rights to the work would be determined. When it came to mediating the dispute, we were able to assert that until it was resolved my client owned the work, so the discussion was about the ownership and rights to use the work in any way and not simply a contract dispute regarding payment. In the former case, we could have shut down the company until the matter was resolved because we had registered the copyright.
Leverage in a final negotiation is just one reason to register a copyright. I can help you register copyrights for a wide range of original materials.
