Why Waiting Too Long to Register Your Copyright Is a Big Mistake

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?

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Roger

What about mandatory deposits? How does that work?

Liani

Hi Roger,
I posted a response in the comments below instead of directly in reply to your comment string. Sorry replying on cell phone this am and it’s a little wacky! Hope my response helps!

Harald Johnson

Great post!

Q: for U.S., any difference in protections between doing the simple One Work by One Author application ($35) vs the more complete Standard application ($55)?

Liani

Hi Harald! Thanks for your question and for reading my guest post. I’m glad you enjoyed it! 🙂 To answer your question, there isn’t a difference in the “protection” you will receive, but the question is whether your works will qualify for registration using the simple application vs standard application. You should read the exact requirements on the Copyright Office website carefully to make sure of which application your work fits within so your application is not rejected if filed under the wrong type. https://www.copyright.gov/circs/circ11.pdf . But generally speaking, the simple application is for ONE work (1 book, 1 song—not a book series or an album), ONE author (not two or more authors), ONE owner (so work for hire or company assignments cannot use this application), etc. Also FYI the prices you mentioned in your question have gone up slightly. I actually go through a step-by-step screen share of the registration process (standard application) in my Copyright 101 course and just did it last week. 🙂 Hope this helps! Would love to have you come join my Masterclass this week if you’d like to learn more about copyright. Link above.

Harald Johnson

Thanks!

Liani

Hi Roger! Thanks for the question and for reading my guest post on Jane’s site. The “mandatory deposit” requirement you ask about is under the Copyright Act, which requires copyright owners to deposit copies of books and other published works with the Library of Congress within three months of the date the work is published—whether or not the books are registered. This “mandatory deposit” requirement is totally separate from the issue I discuss in my post regarding the benefits of timely registration for copyright protection. However, when you register your work with the Copyright office, you’ll also be asked to send in “registration copies” of the work as well. The copyright law contains a provision under which a single deposit can be made to satisfy both the mandatory deposit requirements for the Library of Congress and for the registration of the copyright. So when you register a copyright you are likely complying with both deposit requirements – with a single deposit of your work. So long as you register your work in a timely manner (no more than 3 months, as I discuss), you should be able to satisfy both. Hope that helps clarify! Feel free to check out my free masterclass this week for more copyright tips! Link above. 🙂

Evelyn Starr

Hi Liani! Your article made me feel good about taking time to register my book within three weeks of publication and send copies to the Library of Congress.

Prior to publication I applied for a Library of Congress Control Number (LCCN) for my book. The email from the Library of Congress advising me of my LCCN did specify that the copy of my book that I would send to satisfy the Copyright Office requirement would not satisfy their need to have a copy on file for the LCCN. I mention this in case their are other writers in a similar position, but I also recognize you were not talking about the LCCN in your post.

Liani

Hi Evelyn! Thank you so much for reading and commenting. That’s a good reminder!

Debbie Burke

Thank you, Liani, for an understandable explanation of a complicated topic.

What if an author registers copyrights after three months have passed since publication but before infringement occurs?

Liani

Hi Debbie! Thanks for reading. The 3-month rule is for the ability to obtain statutory damages and attorney fees. After 3 months you can still file a lawsuit as long as you register before the infringement BUT you lose the ability to obtain those damages which makes it far more costly (likely cost prohibitive) to file a lawsuit. You also lose a lot of negotiation power because the other side knows this as I discuss in the article, etc. Also be aware that if you wait past 5 years to register you then lose the presumption of ownership as well. I go into more depth about this and other copyright basics in my FREE masterclass. You may want to consider taking it before it ends in 2 days. Link in the article. Good luck!

Debbie Burke

Thank you for the clarification, Liani. Signed up for tomorrow.

AC_K

Liani wrote, “After 3 months you can still file a lawsuit as long as you register before the infringement BUT you lose the ability to obtain those damages which makes it far more costly (likely cost prohibitive) to file a lawsuit.”
 
To be clear, to have a “timely” registered copyright claim filed with the US Copyright Office and, consequently, being able to pursue statutory damages (and attorney fees & legal cost, at the court’s discretion — not automatic), authors & creatives must register their works EITHER before the copyright infringement begins OR register within three-months of first-publication.  

Mark Clemens

Thanks for the post, Ms. Kotcher. I have a novel that is currently in search of an agent or publisher. I have been assured by many people that it wasn’t necessary to copyright it, but as I read your column, I was getting ready to copyright it. That is, until I came to this sentence: “the best practice is to register copyright as soon as your work is published publicly…” What does “published publicly” mean? I have a novel in draft that has been read by family, colleagues and a few agents — does that qualify? Can I, should I, copyright an unpublished manuscript? Thanks.

Liani

Hi Mark! Thanks for reading my post. First off, from one writer to another, congrats on finishing a book and querying! That’s a huge accomplishment. As for your copyright question, you can find the exact definition of “publication” on the U.S. Copyright Office’s website: “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first made available to the public. Pitching to agents, publishing houses etc. generally do not fall within this definition but there may be exceptions depending on the nature of the pitch. Sending a query email to agents & publishers should be fine. That doesn’t mean there is no risk of your work ever being infringed (through it is incredibly low—reputable agents and publishers are in this business to sign people not steal work), but just that the 3-month rule is not likely to kick in at this time. However, courts can rule wonky ways so I never say never but highly unlikely. I go into way more detail about why creatives should pitch and network as often as possible—without fear—in my FREE masterclass this week. Link in bio to sign up. Good luck querying!

AC_K

My best plan is to register my creative works PRIOR to “shopping them around” to publishers, agents, licensees, and others. In this case, I’m registering my authorships as UNpublished works. If I’m registering an UN-published work on a Monday, I’ll wait at least three-days or longer before I begin prospecting my new book to potential editors, publishers, etc. (as a defendant infringer could argue these actions are a statutory publication). 
 
Even with Liani’s assurance that publishing houses, editors, and other third-party professionals are ethical and won’t infringe, exploit, or steal my work, I feel much more comfortable getting those creative works registered BEFORE contacting others to read, review, and/or pitch my book. 

Fiona McGier

So you’re saying that even though my royalties barely buy me a cup of coffee, I need to dig into my savings to pay a big (for me) sum of money to the govt. to copyright each of my books, or else? Thanks for giving me something else to stay up late at night worrying about.

Liani

Hi Fiona! Thanks so much for reading my post. I can totally understand your frustrations; this is exactly why I offer free classes like my Masterclass on copyright and tons of other affordable help to creatives & artists, including volunteering pro bono. I am passionate about helping creatives feel empowered with knowledge for their own creative businesses and understand this can all be daunting and unduly expensive. However, I think perhaps you misunderstand my post? It’s about why you should be timely to seek all the advantages of registration. If you’re going to spend $40 or so to register you should get all the bang for your buck. However no where do I say you absolutely must register with the copyright office. In fact, my article says registration is no longer mandatory under copyright law. While I strongly recommend it—upon years of seeing infringement issues—this is totally up to you and every individual has to decide their own level of risk. Hope that helps! I wish you the best of luck with your creative endeavors! 🙂

AC_K

Fiona McGier wrote, “So you’re saying that even though my royalties barely buy me a cup of coffee, I need to dig into my savings to pay a big (for me) sum of money to the govt. to copyright [register] each of my books, or else?”
 
Using the “Group Registration of UNpublished Works” (GRUW) on-line copyright registration application, authors & creatives can “group-register” from two and up to ten UNpublished works of the same category, like all literary works (TX), for a total registration fee of $85 (NOT $85 for each work). For example, you could register five UNpublished short novels, one UNpublished biography, three UNpublished poems, and one UNpublished magazine article. This application can NOT include any published works.
 
The fee to register a single published or unpublished (literary) work is either $45 or $65.   
 
The GRUW application provides us with a cost-saving method to register, protect, and help prove our copyright authorship claims:  https://www.copyright.gov/gruw/
 
In addition, using the “Group Registration for Short Online Literary Works” (GRTX) on-line copyright registration application, you can register up to 50 literary works (blog entries, social media posts, and short online articles) that are first-published on-line and contain at least 50 to 17,500 words per a three-month timeframe for $65 total fee: https://www.copyright.gov/grtx/
 
The US Copyright Office is really trying to provide authors & creatives affordable options to “timely” register their copyright claims.

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[…] While copyright attaches to a work as soon as it is in tangible form, Liani Kotcher explains why waiting too long to register copyright can hurt you. […]

Thank you so much for sharing!

Amelia Sides

Do you register them as single copywrites or as “Group of Unpublished Works,” ?

Liani

Hi Amelia! Thanks for reading my post. I’m not sure I understand your question: “do you register ‘them’ as a single copyright or group of unpublished works? It all depends on what “them” is. 🙂 The Copyright Office is very specific that generally it is one work per registration. So for example, one book per registration–not multiple books. There are a few exceptions that multiple works can fit under depending upon the circumstances. These exemptions mostly fall within Sections 1102/1106 (unpublished collection), Sections 1103/1107 (unit of publication), and Section 408(c)(1)(group registration like serials, daily newspapers, etc.). Here’s a helpful link from the Copyright Office to read more: https://www.copyright.gov/comp3/chap1100/ch1100-registration-multiple-works.pdf

If you’d like to learn more about copyright I encourage you to sign up for my premiere education course COPYRIGHT 101 where we go over all the copyright basics and tips, tricks and hacks.

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Troy Deckert

Thanks for a great article. You reiterated the 3-month deadline after publishing for statutory/lawyers fees in the answer to Debbie Burke’s post. But at first under Lawsuits, you only mention the “before a violation” aspect, and only later do you link it to the 3-month deadline. I feel compelled to further stress this to readers: You have only 3 months to register after publication to get the most important protections as Liani Kotcher explains. As a publisher, I personally used the U.S. copyright office and this deadline is not made crystal clear.

Liani

Hi Troy! Thanks so much for your comment. I agree 100 percent this deadline is not stressed enough and am so glad you are also continuing to spread the word. I hate to see creatives in our community get taken advantage of and following the 3 month rule is key. Best of luck to you in all your publishing endeavors!