You Cannot Sue for Copyright Infringement of an Unregistered Copyright
The reason that everyone must register a copyright is simple: In general, you cannot sue for copyright infringement of unless you have a registered copyright.
That’s right: even though you are the victim of copyright infringement, the law requires copyright registration as a prerequisite to a federal copyright infringement lawsuit, and copyright infringement generally must be brought in federal court.
Copyright Infringement Lawsuits Require Copyright Registration
Copyright law is strange. By simply creating something with artistic value, you own a copyright to that artistic work. However, you cannot sue for copyright infringement unless you have registered your copyright.
Example of Copyright Infringement of an Unregistered Copyright
Here is an example. Mary writes information on her website. Joe copies that website. Joe has infringed Mary’s copyright. Mary wants to sue Joe, but she can’t because she never registered a copyright for the material she wrote on her website. To sue Joe, Mary must register a copyright.
Simple Solution: Register a Copyright
Copyright registration is fairly simple and cheap. You can do it yourself at the U.S. Copyright Office using their online system. Here is a guide. If you don’t want to do it yourself, our firm charges a measly $100 for most copyright registrations.
Copyright Registration Requirement Background
For those who want some legal support for this article, or who want to understand this area of law better, read on.
Suing Over Unregistered Copyrights
This information is from the public domain book “Circular 1,” a book for authors and publishers on this particular issue, and it procedurally explains how to file a lawsuit in federal court for copyright infringement of an unregistered copyright. This is also codified in 17 U.S.C. § 411(a).
1) Before an infringement suit may be filed in court, registration is necessary for works of U.S. Origin.
Without a registered copyright, you can’t file suit for copyright infringement. That means if somebody infringes on your work and isn’t willing to correct the situation to your satisfaction when you complain, you’ll have to register the copyright before you show up on their radar as an actual threat. There may be situations where you can take legal action for some other cause related to the theft, but not for copyright infringement.
2) If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
If you don’t register within five years of creating the work, the court doesn’t have to recognize the registration you do file as self evident proof.
3) If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
The award of statutory damages and attorney’s fees is the big stick in copyright law that prevents most cases from going to trial – less than one percent of infringement suits filed. The statutory damages will likely be less of an expense for the infringer than paying the plaintiff’s attorney fees if the case goes as far as trial. Figure on five figures just to get the ball rolling, and six figures if the case ends up going to trial. If the copyright isn’t registered three months after publication or before an infringement, that’s cash you’ll have to pay out of pocket, which is likely to be more than any damages you can hope to recover unless the infringing work was a bestseller or had that much of an impact on your own sales. The exception here is if the infringement was online, in which case the Digital Millennium Copyright Act (DMCA) may allow you to recover legal costs, if the court decides to award them.
4) Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.
If you’ve registered the copyright, you can appeal to the Customs service to protect you from illegal imports, perhaps from countries where you have no chance of going after the infringer.
If you need to register a copyright in a hurry so you can launch a legal action to seek an injunction against somebody who is destroying your business, the current fee is $685, and you may need to provide proof of pending litigation or Customs complaint in order to get it. But the bottom line is this. In most instances, a registered copyright will ensure that if somebody does infringe on your work, they’ll be under tremendous pressure to remedy the situation once they get legal advice. An unregistered copyright might give them pause, or it might give them a chuckle. Depends on the depth of their pockets and their darkness of their souls.
In Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010), the US Supreme Court recently struck down the requirement that unregistered copyrights first be registered as stated above before they are justiciable matters. Unfortunately, many courts will still dismiss the lawsuit on the issue of Subject Matter Jurisdiction due to the fact that the work has not been copyrighted yet. This was the case in Stuart Weitzman, LLC v. Microcomputer Resources, Inc., 542 F.3d 859 (11th Cir. 2008). The Court held that because the unlicensed copyright holder had not registered the copyright yet, the District Court had no Subject Matter Jurisdiction over the matter.
State Court Suits
This issue hinges completely on the coercive action by the declatory judgment defendant.
“Federal question jurisdiction “exists in a declaratory judgment action if the plaintiff has alleged facts in a well-pleaded complaint which demonstrate that the defendant could file a coercive action arising under federal law.”
Stuart Weitzman, LLC v. Microcomputer Resources, Inc., 542 F.3d 859, 862 (11th Cir. 2008)
The Weitzman Court further went on to say that any state law claim brought by [a party to the suit] over a copyright would not support federal subject matter jurisdiction unless the claim is completely preempted, even if § 117(a) provides an affirmative defense that arises under federal law, and even if federal law governs [the parties] hypothetical state law claims.
In short, this means that the parties could bring the action in state courts, however, if any damages sought or defenses raised are governed under federal law, state courts are not the proper venue for such an action due to the Preemption Doctrine.
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