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Copyright Corner

Registering works with the United States Copyright Office – is it a legal requirement to do so?
By Eric S. Slater, Esq., Manager, Copyright, ACS Pubs. Div.

October 2005

I am briefly covering the above question this month, as I have been asked about this issue a number of times recently. The short answer is “no,” it is not a legal requirement to register one’s works with the United States Copyright Office. Copyright automatically attaches to a work upon creation by the author (whether an individual or corporate entity), thus arguably the main rationale for registration not to be required.

It is highly recommended, however, that works be formally registered with the United States Copyright Office (note that registration may be made at any time within the life of the copyright). There are several reasons why registration is a smart idea, as explained below. By the way, the ACS Publications Division registers all the works it publishes (as do most publishers and copyright owners), and by doing so, the ACS and its authors are protected in the following ways under United States Copyright Law (Title 17 of the United States Code):

1. To obtain statutory damages and attorney’s fees – Statutory damages are the damages a copyright owner may be awarded under the law itself. This and item #4 below are probably the best reasons to register a work. Not doing so precludes the copyright owner from obtaining statutory damages, although the copyright owner may be eligible for only actual damages and profits. A copyright notice just by itself will not permit a claim for statutory damages. This pertains to registrations made within 3 months after publication of the work or prior to an infringement of the work.
2. For evidentiary weight – Helpful in litigation to establish prima facie evidence both of validity of the copyright and facts stated in the copyright certificate issued by the United States Copyright Office upon registration. This pertains to registrations made before or within 5 years of publication.
3. For constructive notice – Documents recorded in the United States Copyright Office are given constructive notice of the facts stated in the recorded document. This essentially establishes a public record of the copyright claim – to put the world on notice that an individual or entity owns copyright to the work.
4. To institute an infringement suit – Works of US origin must be formally registered before an infringement action can commence. Definitely a good reason by itself to register the work! This item goes hand-in-hand with item #1 above as why one should register his or her work.
5. To cure omission of notice – If the work was published without a copyright notice (pertains to works published between 1978 and March 1, 1989).
6. For commercial reasons – A registration certificate may be required for business dealings such as licensing, collecting royalties, and others.

The above are discussed in The New & Updated Copyright Primer: A Survival Guide to Copyright and the Permissions Process. Copyright 1997, 2000 Association of American Publishers. See http://www.publishers.org/about/primer.cfm for information on how to order this excellent copyright and permissions resource, which also details how to apply for registration.

See also the United States Copyright Act itself, http://www.copyright.gov/title17/, specifically Chapter 4, Copyright Notice, Deposit, and Registration, http://www.copyright.gov/title17/chapter04.pdf. The United States Copyright Office Website also explains the fee structure for registration of works, as well as which forms to use, and how to navigate the registration process. For most types works, the fee is $30 per work – surely an in expensive investment to obtain complete legal protection for the work.

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