Two recent court decisions highlight the wisdom of registering your claim for copyright as soon as possible. The reason being that while registration itself is not required for copyright protection, any meaningful enforcement of that copyright requires that registration be accomplished, and accomplished promptly.
We can start with the requirement that you cannot sue for copyright infringement until registration occurs. 1 So, once you discover your work is being infringed, every day that goes by without a completed registration in hand brings infringements that multiply, along with damages that you may or may not be able to recover. And the Copyright Office indeed takes a long time to process registrations. The average wait time is currently 4 months. 2 The Courts are split on how long you can “look back” in your effort to calculate damages. 3
But prompt registrations carry with them two significant litigation advantages: the ability to recover statutory damages, and the ability to request an award of prevailing party attorney fees to be paid by your opponent. Leading to three obvious questions:
What is prompt?
Before the infringement occurs or within three months of first publication. 4
What are statutory damages?
These are payments that you can request from the Defendants without the requirement to prove the precise amount of the damages. These can increase or decrease depending on the conduct of the parties (as well shall see).
“Request” attorneys fees? Don’t I always get my attorneys fees paid?
Sadly no. The award of attorneys fee is within the discretion of the Court. And as a litigation disadvantage, the successful Defendant can always ask for an award of attorneys fees, but the Plaintiff has to have registered promptly. 5
First up, statutory damages. Typically the amount to be awarded is between $750 and $30,000 per work infringed. 6 However, if the conduct of the Defendant is egregious enough, the maximum statutory damages is $150,000 per work infringed. 7 Despite this being bandied about by the anti-copyright forces as being an example of copyright law run amok, this amount is almost never awarded. This maximum is typically awarded where the defendant has failed to show up and defend the case, and where the defendant’s conduct is obvious and malicious.
But not always is a default a precursor. In December, a jury in California awarded a photographer a total of $6.3 million in statutory damages over 43 separate counts of infringement. 8 Why so much?
“[The Plaintiff], Hargis argued that [Defendant] Pacifica’s infringement was willful because it is a ‘sophisticated for-profit business with full knowledge of the strictures of federal copyright law and the basic requirements for licensing copyrighted content for commercial exploitation.’
Furthermore, the photos remained on Pacifica’s websites even after Hargis had notified the company of the infringement and made numerous attempts to settle, said the complaint.” 9
Next up, attorneys fees. Another recent case saw the Court award $865,101.94 in prevailing party attorney fees against a copyright defendant. 10 Why so much? Again, the conduct of the Defendant in litigating the case looms large.
“…Defendants unnecessarily prolonged the litigation by advancing frivolous legal arguments and factual contentions and employing tactics that significantly increased the work needed to litigate this matter (and the attorney’s fees expended by [Plaintiff] BGP’s counsel) in an attempt to avoid or delay responsibility for their infringement. For example, Defendants filed a motion to compel arbitration purportedly based on a settlement agreement between Robert N. Goldstein and Defendant Habeeb. (Citation Omitted). However, the Court denied the motion because Defendants failed to demonstrate the arbitration clause was enforceable against BGP—a non-signatory to the settlement agreement—and that, even if it was enforceable against BGP, the parties’ dispute did not fall within the scope of the agreement to arbitrate. (Citation omitted). Defendants also failed to cooperate in discovery; they initially denied uploading any of the infringing videos to ATVD’s internet accounts, denied knowing about one of ATVD’s accounts, failed to preserve copies of all the infringing videos uploaded to ATVD’s internet accounts, and claimed that they could not get access to key information about the uploaded videos. This conduct necessitated BGP’s filing a motion to compel discovery, (Citation omitted), which the Court granted in its entirety following a hearing, (Citation omitted). And after BGP obtained documents and testimony proving that persons working for ATVD created the internet accounts at issue and uploaded the infringing videos, Defendants conceded that they created those accounts and uploaded the videos. Ultimately, Defendants stipulated that BGP had met its burden of proof with respect to the underlying elements required for showing that ATVD directly infringed BGP’s copyrights in 26 Cheaters Uncensored episodes by posting videos to its internet accounts. (Citation omitted). Given these circumstances, awarding a reasonable attorney’s fee to BGP would advance considerations of compensation and deterrence.” 11
So, there you have it. Get out there and register your copyrights. Like right now!
- 17 USC Section 411 ↩
- Copyright.gov Registration Processing Times and FAQs ↩
- Court of Appeals Rules That a Timely Filed Copyright Infringement Lawsuit Can Recover All Damages, No Matter How Long Ago They Occurred ↩
- 17 USC Section 412 ↩
- 17 USC Section 505 ↩
- 17 USC Section 504 ↩
- 17 USC Section 504 ↩
- Scott Hargis v. Pacifica Senior Living Management, LLC ↩
- Jury Awards Photographer Max Damages in Copyright Suit Against Senior Living Giant ↩
- Bobby Goldstein Productions v. Habeeb, US District Court N.D. Texas 2023 WL 8790284 ↩
- Id. at pages 1-2 ↩