Should you copyright elements of your website or other content you put online? Many so-called legal experts suggest it is no longer necessary given a Supreme Court decision in 2010. While the Supreme Court did throw a wrench into the works, copyright registration is still a very smart move for a number of reasons, and you do yourself a disservice if you don’t register.
The United States Supreme Court is the ultimate court of the land. The “mature” Justices, however, sometimes render decisions that can best be called misguided. They did this in 2010 in a case known as Reed Elsevier, Inc. vs. Muchnick, 130 S. Ct. 1237 (2010).
The Muchnick case involved a standard copyright infringement claim. One aspect of the appeal in the case concerned the registration of the underlying copyrighted work with the Copyright Office. Section 106A(b) of the Copyright Act of 1976 reads:
…no civil action for infringement of the copyright in any United States work shall be instituted until pre-registration or registration of the copyright claim has been made in accordance with this title.
Given this language, it seems clear a party must register their copyright before they can bring a lawsuit for infringement. Judges throughout the federal court system agreed, and it had become accepted practice throughout the land.
Apparently having had a poorly catered lunch, the Supreme Court Justices decided to ignore the plain language in the Copyright Act and rule registration is not a jurisdictional requirement for bringing a lawsuit. The Court then followed up this bizarre decision by giving no indication of how infringement claims for unregistered works should be handled.
Confused? So are the courts and lawyers.
A few media outlets and attorneys have jumped the gun and suggested the Muchnick ruling means you no longer need to register before filing a copyright infringement lawsuit. While there is a technical debate to be had on the issue, the advice not to register is misguided from a practical point of view.
Having made such a mess of the Muchnick decision, the Supreme Court left district courts with the task of determining how to handle infringement claims regarding non-registered copyrights. In the vast majority of cases, district courts are throwing out the lawsuits, to wit, nothing has really changed. For those unfortunate souls who fail to register their copyrights, the result is they may be unable to sue people stealing their content.
Then we have the real world practical problems associated with copyright infringement claims. The two issues we need to address deal with attorney’s fees and statutory damages.
Lawyers are expensive. I certainly know this being one of them. If you sue a party for copyright infringement, the attorney’s fees can quickly consume any winning judgment. This occurs because you are responsible for paying your own attorney’s fees in the case unless you register the copyright with the Copyright Office in a timely manner. This alone makes registration a smart move.
Then we have the issue of damages. How do you prove damages in a copyright infringement case? It is very difficult. If someone republishes your photos on their website, what is your monetary loss? In most instances, it is pretty small unless the site is extremely popular.
Damages are an entirely different issue if you register the copyright in a timely manner. Why? Not only will you be awarded attorney’s fees, but you will receive statutory damages.
Statutory damages are defined by law and applied by the court. These damages are anywhere between $750 and $30,000 per work and up to $150,000 if you can show willful action on the party of the defendant.
Let’s consider an example. Assume you have a website with 90 pages. Let’s further suppose you catch Bob scraping all your content and republishing it on a domain he owns. At a minimum, you can claim damages of $67,500 [90 pages x $750] and your attorneys fees. If the judge bumps the damage amount per page from $750 to $10,000, the total jumps to $900,000.
Now do you think registering a copyright is worth it?
Garbage In, Garbage Out
If you haven’t learned already, you should take anything you read online with an enormous grain of salt. This is particularly true when the statements are made by so-called “experts.” Most don’t have a clue.
Do you need to register a copyright with the Copyright Office prior to suing for infringement? Thanks to the Supreme Court, the issue is theoretically up in the air. Practically speaking, you would be a dolt not to register.
Contact me today if you need help with a copyright registration or DMCA issue.
Richard A. Chapo, Esq.