In most of the world, including the United States, a work enjoys copyright protection the moment it is fixed into a tangible medium of expression. In short, once the doodle is on the napkin, the photo on the SD card or the blog post saved on the server, it is considered copyrighted.
However, in the United States, enforcing those rights can be a bit trickier. If you want to sue for copyright infringement, you have to first register the work in question with the U.S. Copyright Office (USCO). The U.S. is the only major country with such mandatory copyright registration and it is a major headache for content creators, especially in the digital age.
So should you take the time to register your site with the USCO? There is no definitive answer but you should at least be aware of what is required of you and what you may sacrifice if you don’t.
Benefits of Registration
Circular 1 from the USCO (PDF) lays down the benefits of registration pretty thoroughly. They include the following:
- Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
- If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
- If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
- 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.
For bloggers, it is elements 2 and 4 that are the most important. Though it’s nice to have a public record of the prima facie (meaning “on first appearance“) evidence of ownership, a registration is required if you are going to sue for copyright infringement in the U.S. and you are only eligible for statutory damages, which can be as high as $150,000 per infringement, and attorney’s fees if you have have filed the registration before the infringement takes place or within three months of publication.6t5r4
The latter is equally important as, in most cases, the actual damages, what one would be left with without statutory damages, is nothing. Actual damages are defined as the greater of what the infringer gained or the infringed party lost, something that is almost impossible to prove or rarely has any significant value.
In short, suing for copyright infringement is almost never practical without statutory damages and attorney’s fees.
If you are outside of the U.S., you can actually sue within the country without a registration. However, you still can not claim statutory damages. As such, the same as with U.S. citizens, suing is often impractical.
Still, the question remains, should you register your site with the USCO? The answer is really up to you.
To Register, or Not To Register
Registering your site or your content with the USCO doesn’t take that long and is fairly straightforward. It can be done online and, for a basic registration, takes less than 30 minutes. All you’ll need to do is zip up the contents of your site or place it in a text file that can be uploaded.
However, there is a financial cost to it. Each registration costs $35 though you can register multiple works at once, including your entire site if you wish. However, bear in mind that if you do that, you can only claim statutory damages once per registration.
Any attorney you talk to will insist upon you registering your site every three months at least. Though it is unclear how the USCO’s definition of “published” fits with the Web, meaning that may not provide perfect protection, it is certainly more practical than trying to register each post individually as they are uploaded.
That being said though, the real test is whether or not you plan to sue for copyright infringement. If you have no plans to do so, no matter what, registration is a waste of time and money. If you think you might want to some day, it’s probably best to make the effort to register your work.
In the end, only you can decide if your work has enough financial and/or personal value to warrant registration, but even if it has only a small amount, it may well be worth taking the time to protect it correctly.
You don’t need to register your work to send cease and desist letters, DMCA takedown notices and take other action to protect your copyright, however, if you want to sue in the U.S., you will need it at some point, preferably before the infringement.
The decision about whether or not to register hinges almost completely on that element, to sue or not.
To that end, the vast majority of copyright holders never file any kind of suit, even when they are infringed upon. Most cases are resolved through other means, such as removal of the work or payment of a licensing fee. Only a fraction of a percent of all infringement cases make it to a lawsuit at all.
As such, for most it will likely be a waste of time and money but, for those who think they might want that option at some point, even if they never use it, having the registrations in order could be a valuable insurance policy against infringement, especially egregious cases.
The choice is yours but, either way, it is important to be aware of the consequences of the decision.