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[Copyright] Copyright Registration Requirement in Litigation

- when you discover an infringement

· Litigation,Music Law,Copyright,Entertainment Law,Photography

On March 4, 2019, the Supreme Court unanimously held that an intellectual property owner must obtain a copyright registration of the IP before filing a copyright infringement claim in courts. The case is Fourth Estate Public Benefit Corp. v., LLC and Justice Ginsburg delivered the opinion (RIP R.B.G.).

In short, if someone infringes your work and if your work is unregistered, you must file and obtain a copyright registration from the U.S. Copyright Office before filing any copyright infringement claim in courts. However, this does not prevent a plaintiff from filing any other claims in courts, for example, a trademark infringement claim or a tort claim.

Complying with the copyright registration requirement, an applicant has the option to expedite the application with additional fees. It currently takes, on average, 2 to 7 months to obtain a registration certificate once an application is properly filed, and the time varies if the application requires physical copies of the work to be deposited by mail.

That being said, once the work is registered and a legal action is brought in a federal court, the injured party could be awarded with recovery of statutory damage (or actual damage if values more), recovery of infringement occurred prior to copyright registration, and attorney fees. Note that there is also a three-year statute of limitations for copyright infringement actions pursuant to the Copyright Act. If you reasonably discover an infringement, you have three years to register the work and bring a copyright infringement action in courts.

This ruling is particularly important to photographers and musicians, as it usually would not be realistic to register every piece of photograph or music. If you are a photographer and you publish your work online, make sure to use watermarks, embed copyright metadata into your EXIF file, display a clear copyright notice around your work or use encryptions. Make sure to from time to time track the photos and check if any infringement has occurred. When it comes to music, an obvious infringement would be someone played your songs for commercial purposes without your permission or exceeding your permission.

Once an IP owner discovers an infringement (or when a reasonable person should have discovered such infringement), the owner needs to move quickly to first keep record of all evidence and apply for a copyright registration of the infringed work, then consider filing a DMCA take-down notice if it applies. Before a registration is issued, the owner may also consider sending a demand letter through an attorney.

With more and more machine learning applied in infringement monitoring software, creative groups will likely find themselves registering more and more of their works with the Copyright Office and using more enforcement tools to protect their rights and ownerships over their intellectual properties.


Sincerely yours,

Silvia Sun, Esq.


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