Can I Get Copyright Statutory Damages and Attorney’s Fees Without a Registration?

If you register fast enough. The Supreme Court might take Fourth Estate Public Benefit Corp. v. Wall-Street.com and decide that no matter where the lawsuit is filed you only need to apply for registration before suing. That could reduce the wait until an infringement suit can be filed, but it won’t change the troublesome statutory damages and fees hurdle.

Like high hurdles on a track, two legs support a cross-bar. One is “publication” ─ offering or distributing your work to the world by sale, rental, or even just displaying it publicly. Let’s say you put a new photograph on your website gallery and offer it for the first time anywhere through your paywall on February 8, 2018. That’s the publication date.

The other leg is “registration,” having a copyright registration or just applying for one in the states where allowed (which could be every state if Fourth Estate is decided by the top court).

The cross bar is three months. Publication on February 8 requires registration or application by May 8. This is sometimes called the grace period.

If you clear the hurdle, your lawsuit can ask for statutory damages and attorney’s fees. If not, they are lost for most claims. There are exceptions and complications like what happens when infringement starts before your work is published and that’s another story. But most infringement cases must jump this hurdle.

Statutory damages are prized because rights owners often can’t prove actual damages, how many dollars were actually lost. Statutory damages don’t need such proof and can be awarded for an amount “the court considers just” up to $150,000 or more in some situations.

Recovering attorney’s fees is especially good because copyright cases don’t scale well compared to the infringed work’s value and legal expense can exceed damages.

So if the Supreme Court gives everyone an easier way to get in under the three-month grace period, don’t take a nap. If you own a work deserving full protection under our copyright laws, register as soon as possible. High hurdles demand speed.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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