While copyright registration is a useful way to protect creative works, it is important to note that registration is not an essential step in obtaining copyright protection. Unlike patent protection, copyright protection arises at the moment a work with a modicum of originality is fixed in a tangible medium of expression. Prior to the 1976 revisions to the copyright law, registration was in fact required, but such “copyright formalities” are no longer in force.

That said, copyright registration is a useful asset for the intellectual property owner, namely because it affords a series of benefits that cannot be obtained absent registration. For example, registration of a copyright is essential if an author seeks to enforce their copyright in federal court. Even if an author creates a work, and it is infringed, and only then does the author seek to register, that registration will still be valid for the purpose of pursuing a lawsuit, but it remains a condition precedent to any lawsuit. Additionally, copyright registration also allows the person enforcing that copyright to seek statutory damages and attorneys fees. Statutory damages are damages set forth explicitly in the copyright law, and where applicable, they will be awarded for each instance of infringement regardless of the amount of “actual harm” that is caused. Given the difficulty and expense associated with showing actual harm, statutory damages can be extremely useful, particularly where numerous instances of infringement have occurred, but the actual harm from each instance is either minimal or difficult to quantify. However, unlike the registration prerequisite to bringing a lawsuit, where registration of the work can occur after the alleged infringement, when it comes to statutory damages, registration of an unpublished work must occur before the alleged infringement took place. Copyright owners of published works have a three-month window following publication in which to register a copyright if they intend to seek statutory damages in subsequent litigation. Attorneys’ fees are another potentially crucial aspect of compensation, particularly in drawn out litigation, and the rule with respect to attorneys’ fees is identical. Finally, federal registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. Thus, there is a substantial incentive to register a copyright, as it substantially increases a copyright owner’s ability to enforce a copyright.

Registration with the copyright office by way of electronic registration is only $35, and will require the copyright owner to submit a sample of the work to the U.S. Copyright Office. There are additional fees associated with paper filing, requests for certificates of registration, and any number of requests a copyright holder may make to the U.S. Copyright Office. That said, these costs pale in comparison to the potential gain associated with statutory damages and attorneys’ fees, and copyright owners would be unwise to allow these relatively low costs to deter them in the registration process. In short, although copyright rights exist from the moment a creative work is in fact created in a material way, much of the ability to enforce those copyright rights is only obtained through copyright registration. Copyright owners considering registration should consult an experienced IP attorney.