Copyright registration is not a prerequisite to obtaining copyright protection. Copyright protection automatically subsists the moment the copyrighted work is fixed in a tangible medium of expression. Thus, registering a copyright claim with the U.S. Copyright Office is not necessary to obtain copyright protection. However, there are numerous benefits to registration and therefore it is highly recommended.
To register a copyrighted work with the U.S. Copyright Office one must submit a registration application. The application can be submitted electronically or in paper form. For most works it is more beneficial to use the online registration system, called the electronic Copyright Office (eCO), because the:
filing fee is lower than for paper filing;
processing time is faster;
status of the application can be tracked online;
payment can be secured by either credit or debit card, electronic check, or through a Copyright Office deposit account; and
applicants can upload certain categories of deposits directly into eCO as electronic files instead if mailing them to the Office.
The application must contain three things:
Application Form: There are different application forms for different types of copyrighted works and for different types of registrations. Registration usually covers only one copyright work. However, for certain types of works a group registration is possible. All forms must be completed and signed when submitted to the Office.
Filing Fee: A non-refundable filing fee must be included with the application. The amount of the filing fee differs depending on several factors (e.g., online or paper filing, single registration or group filing). The fees generally range from $25 to $140, with most fees being below $100. A listing of the most up-to-date fees can be found here.
Deposit: A deposit is a copy of the work being registered and “deposited” with the Copyright Office. All deposit copies are retained by the Office or the Library of Congress and not returned to the Copyright Owner. The deposit requirements vary depending on the type of work being registered.Copyright owners can find more information about the type of deposit they will need to submit in one of the circulars published by the Copyright Office,
Benefits of Registration
Although registration of a copyrighted work is not necessary for the work to be protected there are numerous benefits to registering. These benefits include:
Bringing an Infringement Action: Registration is a necessary prerequisite for U.S. copyright owners to bringing a copyright infringement suit in federal court. (Foreign copyright owners need not register their U.S. copyrights before filing suit).
Evidence of Validity: If a registration application is submitted to the Copyright Office within five years after first publication of the work, the certificate of registration issued by the Office will constitute prima facie evidence of the validity of the copyright and of the facts stated in the registration certificate. This could be important if a copyright infringement case is brought involving the work.
Statutory Damages and Attorneys’ Fees: To be eligibility for the awarding of statutory damages and attorneys’ fees in a copyright infringement case the copyrighted work must be registered before infringement commences, with limited exceptions. Actual damages in an infringement suit may be either nominal or difficult to prove so having the ability to claim statutory damages in extremely significant and may even determine whether it makes sense to sue in the first place.
Satisfies Deposit Requirements: Irrespective of copyright protection and subject to some exceptions, the Copyright Act requires that copyright owners deposit two copies their works with the Library of Congress within three months after the works have been published. This is commonly referred to as mandatory deposit. (The penalty for not doing this is a fine that can only be imposed after the Copyright Office makes a formal demand for the copies on behalf of the Library). When a registration application is submitted to the Copyright Office the copies of works submitted with that application usually satisfy the Library’s independent deposit requirements.
Creates a Public Record: Registration is considered notice to the world of your copyright claim. Among other things, this helps people who wish to license your work to ascertain the status of your work and to find you.
Deposit Requirements - Best Edition
Copies deposited with the Copyright Office must be of the “best edition” of a work. Best edition is broadly defined as the edition that is published in the United States at any time before the date of deposit that the Library of Congress determines to be most suitable for its purposes. The criteria used by the Library to determine what is the best edition for different types of copyrighted works can be found here.
Distinction Between Published and Unpublished Works
Often when and how a copyright owner registers a copyrighted work will depend on whether that work is published or unpublished because the requirements for registration differ slightly depending on whether the work is considered to be published or unpublished under the law. The “under the law” phrase is important here because what the normal person might consider to be published does not necessarily correspond to the Copyright Office’s definition of the term. Moreover, sometimes even knowing these definitions doesn’t help because there is some ambiguity in the term and how it applies to new digital environments. So this is one area to proceed with caution.
The Copyright Office’s definition of published includes: the distribution of copies of a work to “the public by sale or other transfer of ownership, or by rental, lease, or lending” or offering to distribute copies … “to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” A public performance or display of a work does not by itself constitute publication.
In the online environment this gets confusing. For example, a blog post or a photo posted on a website might be considered to be a “distribution of copies,” which would mean it’s a published work under the definition or it could be a “public display,” which would mean it’s unpublished.