Compendium of U.S. Copyright Practices, 3rd Edition

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202 Purposes and Advantages of Registration

202 Purposes and Advantages of Registration

Under the current copyright law, a work of authorship is protected by copyright from the moment it is created, provided that the work is original and has been fixed in a tangible medium of expression. See 17 U.S.C. §§ 102 (A), 408 (A). Although registration is not required for a work to be protected by copyright, it does provide several important benefits:

• A registration creates a public record that includes key facts relating to the authorship and ownership of the claimed work, as well as information about the work, such as title, year of creation, date of publication (if any), and the type of authorship that the work contains (e.g., photographs, text, sound recordings).

• A registration (or a refusal to register) is a prerequisite to filing a lawsuit for copyright infringement involving a United States work. See 17 U.S.C. § 411 (A). A ‘registration . . . has been made’ within the meaning of 17 U.S.C. § 411 (A) . . . when the Register has registered a copyright after examining a properly filed application.” Fourth Estate Public Benefit Corp. v., LLC, 139 S. Ct. 881, 892 (2019). “[R]egistration is akin to an administrative exhaustion requirement that the owner must satisfy before suing to enforce ownership rights,” because “it is the Register’s action that triggers a copyright owner’s entitlement to sue.” Id. at 887, 890. “Once the Register grants or refuses registration, the copyright owner may also seek an injunction barring the infringer from continued violation of her exclusive rights and an order requiring the infringer to destroy infringing materials.” Id. (citing 17 U.S.C. §§ 502, 503 (B)).

NOTE: There are three exceptions to this rule. A registration or a refusal is not needed to file a lawsuit suit involving a foreign work. Id. at 891. Section 408 (F) of the Copyright Act allows the owner of a work that is “especially susceptible to prepublication infringement . . . to institute suit before the Register has granted or refused registration.” Id. at 892. Section 411 (C) provides a similar exception for infringements involving live broadcasts. “As to all other works, however, § 411 (A)’s general rule requires owners to await action by the Register before filing suit for infringement.” Id.

• To claim statutory damages or attorney’s fees in a copyright infringement lawsuit, a work must be registered before the infringement began or within three months after the first publication of the work. See 17 U.S.C. §§ 412 (C), 504, 505. “If [the] infringement occurs before a copyright owner applies for registration, that owner may eventually recover [actual] damages for the past infringement and the infringer’s profits,” but if the claim involves a United States work, the owner must “apply for registration and receive the Copyright Office’s decision on her application before instituting suit.” Fourth Estate Public Benefit Corp., 139 S. Ct. at 891.

• A registration constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate of registration, but only if the work is registered before or within five years after the work is first published.

• A registration provides information to prospective licensees, such as the name and address for obtaining permission to use the work.

• A document that has been recorded with the U.S. Copyright Office may provide constructive notice of the facts stated therein, but only if the document specifically identifies a work of authorship and only if that work has been registered. See 17 U.S.C. § 205 (C) (1)- (2).

• The deposit copy(ies) submitted with an application for registration of a published work may satisfy the mandatory deposit requirement, provided that the applicant submitted the best edition of the work. See 17 U.S.C. §§ 407, 408 (B).

• A registration is necessary to secure the full benefits of a preregistration that has been issued by the U.S. Copyright Office. See 17 U.S.C. § 408 (F) (3).

• The U.S. Customs and Border Protection Service may seize foreign pirated copies of a copyright owner’s work, provided that the work has been registered with the U.S. Copyright Office and the certificate of registration has been recorded with the U.S. Customs and Border Protection Service.

• “To be entitled to receive royalties under [the section 115] compulsory license for nondigital uses, the copyright owner must be identified in the registration or other public records of the Copyright Office.” See 17 U.S.C. § 115 (C) (1) (A).

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