What You Need to Know About U.S. Law: You Really Need to Register Your Copyrights

by Pierce Atwood LLP

Should You Register Your Copyright?

  • Registration of a copyright is not mandatory to obtain copyright protection
  • Registration is a statutory prerequisite to bring a claim for copyright infringement
  • Registration is a prerequisite to seek statutory damages and attorneys’ fees
  • Foreign works are not required to be registered in order to file suit in the United States, however, a registration is required for attorneys’ fees and statutory damages

What do the Courts Say?

As explained by the United States Supreme Court in Reed Elsevier, Inc. v. Muchnick, registering a copyright is an essential element of a cause of action for copyright infringement. Lesser appellate and trial courts have interpreted the actual import of this holding differently and have split into two groups. The first will permit a claim for copyright infringement to proceed if the plaintiff has filed an application for registration with the copyright office but prior to the copyright office actually issuing the copyright registration for the work. These courts often take this position because the effective date of a copyright registration is the date “on which the application, deposit and fees have been received by the copyright office.”

The second group of courts requires a fully granted registration as a prerequisite to bringing a claim. The principal rationale for this position is the argument that if the Copyright Act required only an application as a prerequisite for bringing a claim, then the Act’s explicit requirement for a registration would be rendered superfluous and would violate a fundamental canon of statutory construction by rendering meaningless explicit language in the Act.

Benefits of Registering Your Copyright

Putting aside the uncertainty regarding registration as a statutory prerequisite to bringing a claim, there are significant benefits that come from registration. First, a copyright registration creates a searchable, public record of the copyright in the work, permits the copyright holder to mark the work with a copyright notice, and will help the owner establish willful infringement in a copyright infringement matter. Second, if registration is made within five years from the date that the work was published, the certificate of registration constitutes prima facie evidence in any judicial proceeding of the facts stated in the certificate and of the validity of the copyright. Third, and most importantly, if the registration is made within three months after first publication of the work or prior to an infringement of the work, then the copyright holder can be awarded statutory damages and attorneys’ fees in an infringement action. The availability of statutory damages eliminates the need to prove actual damages that can be both difficult and expensive to establish at trial. Statutory damages can range anywhere from $200 to $150,000 per work infringed.

Fourth, a copyright holder who has registered the work can also avail him or herself of the takedown rights under the Digital Millennium Copyright Act (DMCA). Under the DMCA, a holder of a registered copyright can serve a Takedown Notification Letter to a website that the holder believes has posted, uploaded, or otherwise contains materials that infringe the copyright holder’s copyright. Upon receipt of a proper Takedown Notification Letter, a website is required to expeditiously take down the infringing work and to provide notice of its takedown to any third-party customer who had uploaded or posted the work. The third-party customer then has an opportunity to respond to the Takedown Notification Letter.

Finally, foreign works are not required to be registered with the United States Copyright Office to file suit. Indeed, the registration requirement would violate the Berne Convention prohibition that “the enjoyment and the exercise of [copyright] shall not be subject to any formality.” However, the holder of an unregistered foreign work cannot receive an award of attorneys’ fees and statutory damages under the Copyright Act.

It is highly recommended that based on: (i) the uncertainty over the ability to bring a claim with only an application pending; and (ii) the very substantial benefits that are available once a copyright is registered, that a copyright holder make it a regular practice to undertake the largely ministerial act of registering the copyright claim for their domestic and foreign works with the United States Copyright Office.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP

Pierce Atwood LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.