The U.S. Copyright Act says your creative works are protected by copyright the moment they are “fixed in a tangible medium of expression.” That same law also says that if your work is a “United States work” (generally, first published in the U.S. or, if unpublished, created by a U.S. author), you cannot go to court to enforce your rights unless you register with the U.S. Copyright Office first. Other critical enforcement tools are also conditioned on registration. A right that exists only in theory isn’t worth very much. That is why copyright registration is your best legal defense against infringement.
What copyright tools and remedies are conditioned on registration?
The ability to file an infringement suit is just the first of several critically important elements of enforcement that are conditioned on registration with the U.S. Copyright Office. The others apply to foreign creators as well as Americans. They are:
- A registration certificate made before or within five years after first publication is prima facie evidence of the facts stated in the certificate. That means the work is presumed to be protected by copyright and it is presumed to be the work of the author stated in the certificate and owned by the claimant on the certificate. In order to challenge any of these in court, a defendant bears the burden of proof.
- Statutory damages are available only if the registration predates the infringement, or if a published work was registered within three months of its first publication. Instead of having to prove the usual licensing fees for your work, you can simply instruct the court to pick from the range in the statute: $750–$30,000 per work infringed. The maximum per work goes all the way to $150,000 if the infringement is proven to have been willful (they knew it was infringement and did it anyway).
- Payment of your attorneys’ fees by the losing defendant is also only available if your work was registered prior to the infringement in question (or, for a published work, within three months of first publication). While you get to decide whether statutory damages are applied, it is up to the court whether you get your attorneys’ fees paid by the other side. But if you haven’t registered in advance, you can’t even ask for it.
What is the three-month rule for copyright registration?
If your work has been published, the law gives you a three-month grace period. Register within three months of first publication and you keep access to statutory damages and attorneys’ fees, even for an infringement that started before your registration was complete. After that window, those remedies only cover infringements that begin after your registration’s effective date. Unpublished works get no grace period, so they need to be registered before any infringement starts. For how this fits into a photographer’s workflow, see When Copyright Registration Fits Into the Photographer’s Workflow.
Can you use the Copyright Claims Board without registering?
If the person who used your work without permission refuses to settle out of court, you have the option to file a claim through the Copyright Claims Board. That is a small claims copyright court overseen by the U.S. Copyright Office, with proceedings held online. The maximum award is $30,000 total. But it is a lot less expensive and quicker than litigation in federal district court. You can file your claim once you have submitted your registration application, but the case is put on hold until your registration is issued, and dismissed if registration is refused. Also, keep in mind that the defendant has the right to “opt out.” This means they can refuse to allow the case to be heard by the CCB. If that happens, you’ll have to consider whether it is worth filing in district court.
Is it worth registering if you never plan to sue?
This is a common question. The first thing to keep in mind is that just because you never thought about suing someone before doesn’t mean it can never happen. What if a major corporation uses your work as part of an advertising campaign? That could be worth a lot of money.
The second consideration is that registration gives you power even if you never go to court. When you find someone who used your work without permission and you ask for compensation, they have to decide how serious you are and what their risk is if they don’t pay you. If you demonstrate that you have done the work to protect your rights, they know you’re serious. And when their lawyer tells them about statutory damages and attorneys’ fees, they know their risk is high. Copyright lawyers consistently report that registered works get bigger settlements and faster settlements than unregistered works. Still not convinced? Consider that the $1.5 billion settlement in the authors’ suit against AI company Anthropic only covered books that were registered in advance (before Anthropic copied them, or within three months of publication).
RightsClick can help
You can absolutely submit your registration application on your own. But be careful. The Copyright Office has a web of rules and their website often does not warn you if you are making a mistake. If you do, your application may be rejected and they never refund application fees. That is why even creators who know why it’s important may still not register.
RightsClick makes it easy. Our tools are designed to guide you through the Copyright Office’s rules. All you have to do is upload your work and answer a few basic, plain language questions. It takes less than five minutes and RightsClick does the rest. If you just want to register a single work, you don’t even need a subscription; you can do that right now through the RightsClick website.
Frequently Asked Questions
How much can you sue for copyright infringement?
If you have a timely registration, you can choose statutory damages of $750–$30,000 per infringed work, up to $150,000 per infringed work if the infringement was willful. Timely registration also enables you to request the losing defendant pay your attorneys’ fees.
If you did not register in time, you can obtain your actual damages, plus the infringer’s profits that are not already accounted for in your damages. Theoretically, there is no numerical limit to actual damages but you must provide evidence to prove your loss and the defendant’s profits.
Do you lose your copyright if you don’t enforce it?
No, copyright is not lost by failing to enforce it. Note, trademark law is different in that regard. The Copyright Act does have a three-year statute of limitations (17 U.S.C. § 507(b)) that limits how long you can wait to sue after you discovered the use.
