Registering a Group of Contributions to Periodicals: Form GR/CP ............................69
Who Qualifies for Group Registration ....................................................................................70
How to Apply for Group Registration ...................................................................................70
Effect of Group Registration ........................................................................................................71
Registering Online Works .....................................................................................................................72
How Often Should You Register? ..............................................................................................72
Registering Online .............................................................................................................................73
Registering Multimedia Works .......................................................................................................... 74
Registering Contents of Automated Databases ......................................................................75
Databases Qualifying for Group Registration .....................................................................75
Satisfying Copyright Office Deposit Requirements ..............................................................76
Unpublished Works ..........................................................................................................................76
Published Works .................................................................................................................................76
Electronic Deposits ...........................................................................................................................78
Deposits for Online Works ...........................................................................................................78
Deposits for Multimedia Works .................................................................................................79
Deposits for Electronic Databases ............................................................................................80
Depositing Identifying Material Instead of Copies ..........................................................81
Library of Congress Deposit Requirements .........................................................................81
Sending Your Application to the Copyright Office ...............................................................82
Postal Mailing Your Paper Application, Fee, and Deposit ................................................82
Your Registration Is Effective When the Application Is Received............................83
Expedited Registration ...........................................................................................................................83
CHAPTER 3 | COPYRIGHT REGISTRATION | 37
Preregistration of Unpublished Works .........................................................................................85
The Problem: Infringement Lawsuits Involving Unpublished Works ....................85
The Solution: Online Preregistration Without a Deposit .............................................86
Is Preregistration for You? ..............................................................................................................87
How to Preregister .............................................................................................................................87
Dealing With the Copyright Office .................................................................................................88
Extent of Copyright Examiner’s Review of Your Application .....................................89
Review of Copyright Office’s Refusal to Register Application ...................................90
Full-Term Retention of Deposits and Other Ways to Preserve Deposits .................91
Ful -Term Retention of Deposits ................................................................................................91
Mailing Deposit to Yourself ..........................................................................................................92
Depositing Screenplays With the Writers Guild of America ......................................92
Correcting Errors After Registration Is Completed ..............................................................94
38 | THE COPYRIGHT HANDBOOK
This chapter is about how to register written down or otherwise fixed in a tangible your work with the Copyright Office. form. (See Chapter 1, Copyright Basics.)
It covers the reasons why you should
register, what types of works can be registered,
and who can accomplish the registration.
Why Register?
The chapter also explains step by step how to If registration is not required, why bother?
complete the application forms, deposit the
There are several excellent reasons.
correct material with the Copyright Office,
and take the other necessary steps to complete
the registration process.
Registration Is a Prerequisite
to Infringement Suits
If you’re an American citizen or legal resident
What Is Copyright Registration?
and your work is first published in the
Copyright registration is a legal formality
United States (or simultaneously in the U.S.
by which a copyright owner makes a
and another country) you may not file a
public record in the U.S. Copyright
copyright infringement suit in this country
Office in Washington, DC, of some basic
until your work has been registered with the
information about a copyrighted work, such Copyright Office. You may be thinking,
as the title of the work, who wrote it and
“Big deal, I’ll register if and when someone
when, and who owns the copyright. When
infringes on my work and I need to file a
people speak of copyrighting a book or
lawsuit.” If you adopt this strategy, you may
other work, they usually mean registering it end up having to register in a hurry so you with the Copyright Office.
can file suit quickly. You’ll have to pay an
To register, you must fill out and send
extra $800 for such expedited registration.
an application form, pay an application
fee, and send the application and fee to
Compare—Works First
the Copyright Office along with one or
Published Abroad
two copies of the copyrighted work. Most
works can be registered online through the
Copyright owners who are not U.S. citizens
Copyright Office website, although you also
or residents and whose work is first published
have the option of registering by mail.
in most foreign countries need not register
Contrary to what many people think, it is
to sue for infringement in the United States.
not necessary to register to create or establish
(See Chapter 12, “International Copyright
a copyright. This is because an author’s
Protection.”) But, if they do timely register
copyright comes into existence automatically
their copyrights, they will receive the impor-
the moment an original work of authorship is
tant benefits discussed in the next section.
CHAPTER 3 | COPYRIGHT REGISTRATION | 39
When Is a Work Registered?
/>
limits, you will receive a huge bonus:
the right to receive special statutory
The copyright law says that a copyright
damages and possibly reimbursement of
infringement lawsuit can’t be filed unless
your attorneys’ fees if you successfully sue
“registration of the copyright claim has
someone for infringing upon your work.
been made.” (17 USC Section 411(a).)
Normally, a copyright owner who
Does this mean that that the registration
registers a work and successfully sues an
application must be processed by the
infringer is entitled to receive the amount
Copyright Office and a registration
of losses caused by the infringement (for
certificate issued (a process that usual y
example, lost sales) plus any profits the
takes several months)? Or is it sufficient
infringer (and the infringer’s publisher, if
for the Copyright Office to have received
there is one) earned; these are called actual
a completed registration application?
damages. See Chapter 11, “Copyright
Unfortunately, the courts are split on this
Infringement ,” for detailed discussion.
question. Courts in the Fifth, Seventh,
Unfortunately, this remedy is not usually
and Ninth Judicial Circuits say that it is
sufficient that the Copyright Office has
as good as it sounds. Because an infringer’s
received a completed application. This
profits are often small, and the copyright
rule applies in Alaska, Arizona, California,
owner’s losses equally modest, actual
Hawai , Idaho, Il inois, Indiana, Louisiana,
damages are often quite small in comparison
Mississippi Montana, Nevada, Oregon,
with the costs of copyright litigation
Texas, Washington, and Wisconsin.
(copyright lawyers typically charge between
Courts in the Tenth and Eleventh Circuits
$250 and $500 per hour).
say that the application must have been pro-
To give copyright owners a strong incen-
cessed by the Copyright Office and a certifi-
tive to register their works and to help make
cate of registration issued. This rule applies
copyright infringement suits economical y
in Alabama, Colorado, Florida, Georgia, New
feasible, the Copyright Act permits copy-
Mexico, Oklahoma, Utah, and Wyoming.
right owners who timely register their work
It’s unclear what rule applies in the rest
and later successful y sue an infringer to be
of the country.
awarded statutory damages which range
from $750 to $150,000 per infringed work,
plus attorneys’ fees and court costs.
Benefits of Timely Registration
Statutory damages are special damages a
copyright owner may elect to receive instead
You won’t need to pay the extra $800 if you of actual damages. The amount of statutory
register right away. Far more important,
damages awarded depends on the nature
however, if you register within the time
of the infringement—the more deliberate
40 | THE COPYRIGHT HANDBOOK
and harmful the infringement, the better
What Is Timely Registration?
the chance of obtaining a large award.
(See detailed discussion in Chapter 11,
We said above that copyright owners can
“Copyright Infringement.”)
col ect statutory damages and attorneys’ fees
In one case, for example, Playboy Magazine if they timely register their work—that is, was awarded statutory damages of $1.1
register within the time period prescribed by
million against a publisher who downloaded the Copyright Act. There are different time
52 Playboy photos from the Internet and
periods for published and unpublished works.
published them on a CD-ROM. The court
Published works
awarded Playboy $20,000 in statutory
damages for each copied photo. ( Playboy
A published work is considered to be timely
Enterprises, Inc. v. Starware Publishing Corp. , registered, entitling the copyright owner to 900 F.Supp. 433 (S.D. Fla., 1995).) It’s likely statutory damages and attorneys’ fees, only Playboy would not have been awarded nearly if it was registered:
as much had the photos not been timely
• within three months of the date of the
registered and damages therefore limited to
first publication, or
Playboy’s actual provable monetary losses.
• before the date the copyright
infringement began.
A work is published for copyright
Importance of Timely
purposes when copies are made available
Registration to Value of Copyright
to the public on an unrestricted basis. (See
If you fail to qualify for an award of statutory
Chapter 1, “Copyright Basics ,” for detailed
damages and attorneys’ fees—by not timely
discussion of what constitutes publication.)
registering your copyright—you probably
EXAMPLE 1: Assume that Kay’s novel was
can’t afford a copyright infringement suit.
registered by her publisher two months
And even if you can, the amount you will
after it was published. Kay is then entitled
be able to collect from the infringer may
to elect to receive statutory damages and
not serve as a disincentive to infringement,
attorneys’ fees if she sues Copycat (or
since actual damages are hard to prove.
anyone else) for copyright infringement.
As a practical matter, a lack of timely
registration therefore makes it difficult
EXAMPLE 2: Assume that Kay’s publisher
(if not impossible) to enforce a copyright
neglected to register Kay’s novel. Kay
and, accordingly, reduces its value.
finds out about this and registers it herself
nine months after publication. Copycat
published his copycat novel three months
later. Kay is entitled to statutory damages
CHAPTER 3 | COPYRIGHT REGISTRATION | 41
and fees if she sues Copycat and his
infringement occurred. Only unpublished
publisher, because she registered her work
books, movies, music, sound recordings,
before Copycat copied it.
computer programs, or advertising photo-
EXAMPLE 3: Assume instead that Kay’s
graphs may be pre registered, and only if
novel was never registered. After discovering the work is being prepared for commercial
Copycat’s infringing novel, Kay registers her
distribution.
novel with the Copyright Office. If Kay sues
Copycat and his publisher, she may not
Online Works
elect to receive statutory damages and
attorneys’ fees and costs. Reason: Kay’s
The Copyright Office says that placing text,
novel was registered neither within three
photos, videos, graphics, music and other
months of publication nor before Copycat
copied her work.
publication of the work for copyright
purposes. This is so even if millions of
people view the work. This might seem
Unpublished works
odd, but public display of a work does not
The ordinary rule is that if an unpublished
constitute publication. For a publication
work is infringed upon, its author or
to occur, the copyright owner must make
another copyright owner is entitled to
copies of the work available to the public.
obtain statutory damages and attorneys’
So, an online work is published if the
fees from the infringer only if the work was copyright owner permits users to download
registered before the infringement occurred.
copies. Such permission can be express—
You cannot get around this requirement
for example, where a website includes a
by publishing the manuscript and then
“download now” button or similar link,
registering it within three months of
or the site’s terms of service provide that
the publication date. The three-month
the work may be downloaded, copied, or
rule discussed above applies only if the
forwarded. Permission can also be implied
infringement began after first publication.
in the absence of any clear permission from
Starting in 2006, the Copyright Office
the copyright owner—for example, where
instituted a new procedure that allows some downloading is facilitated in some way
unpublished works to be preregistered. The by the website. However, in some cases it
owner of a preregistered work can obtain
can be hard to tell if implied permission
statutory damages and attorneys’ fees
is granted or not, making it difficult to
against a copyright infringer even if the
determine whether material on some
work was not fully registered until after the websites has been published. In such cases,
42 | THE COPYRIGHT HANDBOOK
the Copyright Office leaves it largely up to
What Can and Should
you to decide whether the work is published Be Registered
for copyright registration purposes. But
keep in mind that if the same work is
Any work containing material that is pro-
The Copyright Handbook Page 8