Today’s post is by former trial attorney-turned-author Liani Kotcher (@RektokRoss). She offers a free masterclass teaching the five most costly copyright mistakes she encounters (and how to fix them), which runs October 27 through November 3 and is accepting enrollment now.
Under the current Copyright Act of 1976 and its subsequent amendments, your creative works are protected by US copyright law as soon as they are put in a tangible medium, so long as they meet all the other elements required for copyright protection (i.e., they must also be original and must contain at least some level of minimal creativity).
For works created prior to 1978 that fall under older copyright acts there are other requirements like notice and registration, but currently there is nothing else you need to do and no other formalities you must adhere to in order for your post-1978 work to be copyrighted.
However, this does not make registration obsolete. In fact, far from it. Though registration with the Copyright Office is no longer required for protection, there are still a multitude of reasons why registration is important, including:
- Registration is evidence of ownership.
- You’ll absolutely want to register your work if you ever want to consider licensing it.
- You must register your work to initiate an infringement lawsuit if someone steals your work and you want to stop them from using it.
With respect to the last bullet point, litigation is expensive because the majority of copyright cases take place in federal court (with very few exceptions), which requires a certain level of legal expertise that quickly racks up attorney fees and court costs. This often makes full-blown litigation cost-prohibitive for everyone except high-earning authors, big publishers, and media corporations. That said, even if you don’t think you (or your publisher) have the funds to actively pursue litigation, there are affordable ways to enforce your copyright that still require registration, making this a must-do action item to protect your work.
Sending a takedown notice
First, before ever having to file an expensive lawsuit, you can send what’s known as a “Takedown Notice” to a site like Facebook or Instagram if you see your work being used without your permission on their sites. You don’t even need to hire an attorney to do this. Under the Digital Millennium Copyright Act (DMCA), there are strong copyright penalties for infringement on the Internet. Social media providers like Facebook and YouTube, and even sites like Wattpad and Swoon Reads have an obligation to supervise and control infringing activities.
However, there is a very specific way you need to inform these online providers of the infringement, and when you send this notice you must include a statement that you are a person authorized to act as a copyright owner. If there is any dispute about ownership, you’ll want to have your work registered in order to refute this and show evidence of ownership.
Sending a cease and desist
Another way to stop an infringer is to send a “Cease and Desist Notice” that informs the individual they are using copyrighted work without permission. Again, similar to the Takedown Notice mentioned above, in order to prove you are the real owner of the work and convince the infringer to take the work down, you have to include your copyright certificate showing proof of registration. Sending a Cease and Desist letter is also possible without hiring an attorney, though use of counsel can help if you aren’t experienced in how to phrase these letters.
Filing a lawsuit
If the two above methods are not successful and you need to protect your rights, you’ll most likely have to file a lawsuit. Still, there are ways to make this more affordable. For example, not all lawsuits proceed to the stages of discovery, hearings, or even trial—which are the processes in litigation that make it costly. In fact, lawsuits can often settle before expenses can get out of hand. But to have the best chance of settling, you’ll need to have leverage to convince the infringing party that settling is in their best interest.
This is where the importance of timely registration comes in.
Now we’re getting to the good part, and why you’re most likely reading this post! Here’s the biggest mistake I most often see writers and even publishers make regarding copyright registration. They know registration is no longer required, and they know you only need to register before the lawsuit in order to bring a lawsuit, so sometimes people drag their heels and wait to register until something bad happens. But by doing this, they inadvertently put themselves in a terrible position and undermine their chances of a successful outcome in a copyright battle. Here’s why.
In order to recover two special types of damages in a lawsuit—statutory damages and attorney fees—you must register before the infringement occurs.
The importance of this cannot be overstated. You want the option of statutory damages because typically in a lawsuit you must prove “actual damages,” which means you must show through evidence the loss of profits/sales or some other quantifiable harm. This can be difficult to prove. However, in the simplest terms, “statutory damages” basically means you just need to prove your work was stolen and then the court can award an amount set by statute—ranging between $750 and $30,000 per infringement, with damages as high as $150,000 in cases of willful infringement. You also want to be able to recover attorney’s fees because this means the losing side will have to pay you back for all the fees you spend on attorneys during the lawsuit.
Being able to obtain statutory damages and attorney fees can make potential recovery much more lucrative and therefore make litigation far more accessible to writers and indie or small publishers. Because the costs of litigation can often be so big it isn’t even worth suing, the ability to recover statutory damages and attorney fees can mean the difference between suing or allowing infringement to go on. Remember, it’s things like discovery, the hearings, and trial that are so expensive. Simply filing a lawsuit and then settling may be more affordable than you think—and being able to threaten attorney’s fees and statutory damages gives you far more settlement leverage, putting you in the absolute best position to make your infringement claims.
For this reason, the best practice is to register copyright as soon as your work is published publicly and, thus, at risk of infringement. But at minimum, you should register within three months of publication.
Why three months? That’s because under the current Copyright Act and its amendments there is an exception to the general rule that you must register before the theft in order to obtain these two types of special damages, creating a safe harbor for works registered within three months of publication. So long as you register within three months of publication, you can still recover statutory damages and attorney’s fees.
So there you have it! If you’re going to spend the money and time to register anyway, why wouldn’t you do it the best way—as soon as possible, or at the very minimum within three months of publication, and take advantage of these additional benefits?
Liani Kotcher is a former trial attorney-turned-fiction author and blogger who makes learning business tools for creatives easy to understand and entertaining. She has over a decade of experience as an intellectual property attorney at one of the top law firms in the world where she handled complex actions involving intellectual property, trade secret, and entertainment and sports law. Her course, COPYRIGHT 101, is specifically designed to help authors, bloggers, and creatives understand what copyright is (and isn’t).
Writing YA fiction under the pen name Rektok Ross, she has written and published Amazon bestsellers. Learn more at her website.