“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…”
—United States Constitution, Article I, Section 8, Clause 8.

Owning a copyright can be a great fortune. The United States constitution provides for exclusive rights in writings, as expressed in copyright law (and discoveries under patent law), allowing an author to profit from his/her creativity. As the copyright owner, you exhibited a discipline and creativity that resulted in an original work that may ultimately benefit the public. Perhaps your work, whether literary, music, visual, multi-media, etc., captures the consumer fancy and you make money directly from it.

If you are proactive and register your copyright at the U.S. Copyright Office, and then if if someone is devious enough to copy or distribute your work, or create a new work based on your original work, you may elect to challenge that alleged “bad actor” in federal court. Notwithstanding that a copyright vests in the author at the moment a work is fixed into a tangible medium, registration is recommended, because without a registration before the infringement occurred, one is not entitled to (1) statutory damages or (2) an award of attorney’s fees.

Statutory damages allows a judge to make a monetary award from $750 to $30,000, as the court considers just. If the infringement is deemed willful, an award can be high as $150,000. The importance of having this option available is that the copyright owner does not have to prove actual damages. For example, damages might be the licensing fee you would have agreed upon, had the “bad actor” thought to request permission and the parties negotiated in good faith. That is, if you would have even granted a license.

Being able to qualify for an award of attorney’s fees is important because, unfortunately, hiring a lawyer to prosecute a copyright infringement claim is expensive, especially if the parties don’t settle and the matter goes to trial. And the issue of attorney’s fees is a two edged sword; attorney’s fees may be awarded to the prevailing party. So if you as the copyright owner sues someone for infringement and you don’t end up proving your case, you could have to pay the “alleged” bad actor’s legal fees. That’s adding insult to injury!

But there is good news on the horizon. Congress has asked the Copyright Office to study the challenges of the current system and consider alternative systems, including possibly a small claims process for copyright disputes. Specifically, the Office has been asked to: (1) assess the extent to which copyright owners are effectively prevented from seeking relief from infringements due to constraints in the current system; and (2) provide specific recommendations to improve the adjudication of small copyright claims. The Office is due to provide a report on this subject in September 2013. The Copyright Office is accepting comments through April 12, 2013, via a form on the Copyright Office website.

–MLShapiro