News

Do You Have to Register Your Copyright Before Filing Suit? The US Supreme Court Will Soon Decide

Article by Heath Coffman

If you make your living from selling or performing your original works of authorship, it is good practice to register that work of authorship with the United States Copyright Office.  Registration creates a public record of your ownership, and if done within 3 months of publication or prior to infringement, it gives the author the right to seek statutory damages and attorneys’ fees from an infringer in a lawsuit.  Most importantly, though, registration is prerequisite to bringing a copyright infringement lawsuit in federal court.

Many authors, however, don’t bother to register their works until after an infringement occurs.  In that case, the author and author’s attorney must rush to apply for registration before filing suit.  In many jurisdictions, including the Fifth Circuit (which includes Texas), that application is sufficient to satisfy the registration prerequisite for filing suit.  However, other jurisdictions, like the Eleventh Circuit (which includes Florida), require the application to be approved and a registration certificate issued before filing suit.  This split in the law can change how lawyers approach a copyright infringement lawsuit.

My colleague Angelique McCall recently published an excellent article at IP Watchdog that explains this split in more detail and notes that this split will soon be resolved by the United States Supreme Court.  Until then, it’s a good idea to register your original works of authorship before they are infringed so you aren’t left scrambling to get a registration while someone else copies your work.  Plus, doing so may entitle you to statutory damages and attorneys’ fees that you could not otherwise get.