Note: Please be sure to read to the end for an important update regarding a 2019 Supreme Court decision regarding copyright registrations.
I was recently roped into a Facebook feed by a composer client and asked to opine on whether composers and songwriters (and other creative artists for that matter) should register their works with the U.S. Copyright Office. After all, it was pointed out, that under the current Copyright Act registration with the Copyright Office is not required to obtain a copyright in a work. Under Section 102(a) “[c]opyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed….” So depending upon how you write your music, as soon as you put the pencil down, hit save on your computer or print out the music from your notation program, you have a copyright. Section 408(a) states that registration is permissive rather than mandatory. And registration can be costly as the current fee to register works online is $55.00 and that can add up if you create a lot of new music (or other copyrightable works). So, you may ask, “why should I bother to register?”
After all, as some of the commenting composers pointed out, you can do what is sometimes called a “poor man’s copyright registration” by mailing a copy of your work to yourself so that the postmark would demonstrate when you created the work. And identifying your work as “(c) 2018 Jane Doe, all rights reserved” is always advisable to put people on notice, whether or not you also register with the Copyright Office. Moreover, copyright registration is not required to register your works with a performing rights organization (PRO) such as ASCAP or BMI. While this is true and it’s essential for songwriters and composers to register their works with a PRO in order to get paid for public performances of their works, there are some very powerful incentives built into the Copyright Act as to why you should also register your works with the Copyright Office.
First, a copyright registration is the best evidence for what you wrote and when you wrote it. The Copyright Office has published a bunch of “circulars” (i.e., pamphlets) online which explain various aspects of copyright law in plain English. As explained in Circular 2 a copyright registration consists of the application, the fee and the “deposit copy,” which is a copy of the work that’s being registered. Under Section 410(c), “[i]n any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” In plain English, the registration provides evidence of what was registered, when it was registered, who created the work and who owns the work as all that information is contained in the application and then put into the registration. And the deposit copy is proof of what was registered. Your self-mailed copy of your music doesn’t have that evidentiary weight in court and what happens if you have to open the envelope to prove your case? Unless you mail multiple copies to yourself you won’t be able to do that trick again.
Second, copyright registration is a prerequisite to filing a lawsuit. Section 411 states that you can’t file a copyright infringement action unless you’ve registered the work you want to sue over. That’s a pretty powerful incentive to register your works. As a practical matter without a registration you have a right (a copyright) without a remedy. For example, if a client comes to me claiming that somebody ripped off their song the first thing I ask is whether they registered their composition with the Copyright Office. Why? Because if I were to send a demand letter to the allegedly infringing party and they check the Copyright Office records online for a registration (and all copyright registrations since 1978 are available online) and they don’t find one for the work they know that I can’t sue them. This lowers my negotiating leverage. Without the ultimate ability to sue the likelihood of my negotiating a favorable settlement (i.e., making the infringer stop and pay a pile of cash for past infringements) is limited.
Third, certain remedies under the Copyright Act are unavailable unless you register your work prior to the infringement taking place. How do you know when you’re going to be ripped off? You don’t. This is another powerful incentive for folks to voluntarily register that’s built into the statute. As to what goodies you’re giving up if you didn’t register prior to being ripped off, Section 412 states you can’t get “statutory” damages under Section 504(c) and you can’t get the ne’er-do-well to pay your attorney’s fees under Section 505. Statutory damages are those assessed by the Court which can range between $750 and $30,000 per infringement and up to $150,000 if the infringement is deemed to be “willful” (i.e., really, really bad). Statutory damages are available because “actual damages” (losses suffered by the plaintiff and profits made by the defendant) are often difficult — and expensive — to prove. And sometimes actual damages are relatively modest so that without the prospect of statutory damages it isn’t cost-effective to pursue a claim. And copyright infringement actions are very expensive. They can run tens of thousands of dollars if the case is resolved prior to trial and hundreds of thousands of dollars — or more — if the case goes to trial and then is appealed. Having an infringer face the prospect of many thousands of dollars per infringement plus having to pay the plaintiff’s attorney’s fees is a very powerful inducement to pre-litigation settlement. But don’t just take my word for it, Circular 1, Copyright Basics, has a section on the benefits of registration.
Fourth, registration is easy. For most registrations, particularly if your work is “unpublished” (and when you first complete writing your music, whether it’s just in notation or in recorded form, it’s unpublished), you can complete the application, including uploading digital files of your deposit copies, online. While I wouldn’t generally recommend that individuals try to do a trademark registration on their own, I frequently recommend that individuals do their own copyright registrations as the process is much simpler and involves fewer legalities and technicalities than trademark registrations.
Fifth, it’s cheap. While $55 a pop can add up quickly if you write a lot of songs (or create a lot of other works), in many instances you can register multiple works under a single application. In addition, there are circumstances where, for example, you can register both an underlying musical work and the master recording of that work in a single application. For general rules regarding the registration of multiple works in a single application, see Circular 34. With respect to registering musical compositions, including questions about the difference between a registration of the music and the registration of the recording, as well as guidelines regarding deposit copies and when you can register multiple songs in a single application, see Circular 50. For information about registering master recordings check out Circular 56 and if you want to know when you can register both the song and the master in the same application, you’ll want to read Circular 56a. Basically, if you want to register multiple musical works in a single application the copyright claimant (owner) has to be the same for all works and the author (or at least one co-author) has to be the same for all works.
However, there is a catch regarding the cost-effective registration of works as a collection. As described in Circular 34, for purposes of statutory damages the collection is treated as a single work. So if a particular person or entity infringed upon more than one work in the collection you can only collect one assessment of statutory damages, not an assessment for each work as would be the case where each work is registered separately. However, since it’s often the case that only one work in a collection is infringed, the benefits of a collective registration will often outweigh any potential loss of statutory damages. But if you believe that all the songs in your collection will generate a lot of income and get a lot of exposure making them potentially ripe for ripping off (if you’re signed to a major label, for example), then it may be worthwhile to register each work separately.
Since I originally published this blog post on March 7, 2018, the U.S. Supreme Court issued a decision on when a copyright registration becomes effective for purposes of Section 411(a) of the Copyright Act. On March 4, 2019, the high court issued its decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. This decision resolved a split among the circuits as to whether a copyright registration becomes effective for purposes of being able to file an infringement action in federal court when the application is submitted to the Copyright Office (as the Fifth and Ninth Circuits had ruled) or when the Copyright Office actually issues a registration (as the Tenth and Eleventh Circuits had held).
Writing for an unanimous Court, Justice Ginsberg wrote that a copyright “registration…has been made” only at the time the Copyright Office issues a registration – and not merely when the application has been filed under Section 411(a):
Under § 411(a), “registration … has been made,” and a copyright owner may sue for infringement, when the Copyright Office registers a copyright. Section 411(a)’s first sentence provides that no civil infringement action “shall be instituted until preregistration or registration of the copyright claim has been made.” The section’s next sentence sets out an exception to this rule: When the required “deposit, application, and fee … have been delivered to the Copyright Office in proper form and registration has been refused,” the claimant “[may] institute a civil action, if notice thereof … is served on the Register.” Read together, § 411(a)’s opening sentences focus not on the claimant’s act of applying for registration, but on action by the Copyright Office—namely, its registration or refusal to register a copyright claim.If application alone sufficed to “ma[ke]” registration, § 411(a)’s second sentence—allowing suit upon refusal of registration—would be superfluous. What utility would that allowance have if a copyright claimant could sue for infringement immediately after applying for registration without awaiting the Register’s decision on her application? Proponents of the application approach urge that § 411(a)’s second sentence serves merely to require a copyright claimant to serve “notice [of an infringement suit] … on the Register.” This reading, however, requires the implausible assumption that Congress gave “registration” different meanings in consecutive, related sentences within a single statutory provision. In § 411(a)’s first sentence, “registration” would mean the claimant’s act of filing an application, while in the section’s second sentence, “registration” would entail the Register’s review of an application. We resist this improbable construction.
139 S.Ct 888-889 (citations omitted). While this approach resolves the circuit split the Court did note that it can take seven months or more from the time an application is submitted to when the Copyright Office issues a registration. Another reason to register as soon as possible to avoid any problems with the Copyright Act’s three-year statute of limitations under Section 507.
As both this article and the Copyright Office circulars are intended to provide only general guidance, you should consult your local copyright lawyer with any specific questions about registrations.