Guest Post: Thanks to copyright attorney David Valentine-Elam for preparing the informative piece below:
Copyright registration in the United States is optional and protection exists whether you register your copyright or not. So why do I frequently advise my clients to register their code with the Copyright Office? Because there is a big difference between having that protection in the abstract, and being able to take advantage of it in the real world. The cost for registering your copyright is minimal (especially compared to the cost of filing a patent) and the benefits you receive are invaluable:
Enforce your rights.
Until you actually register the copyright you cannot enforce your rights in court. This means that if someone is using or distributing your code without your permission you have no credible threat of filing suit until you have registered. And the most significant benefits are only available if you registered before the infringement began, such as the right to…
Recover statutory damages.
If you register before the infringement, or within 90 days of publishing your code, you can elect to recover statutory damages ranging from $750 to $30,000 (or up to $150,000 for willful infringement) instead of actual damages. This is significant because the actual monetary damages are often minimal or difficult to prove. Opting for statutory damages can also save you significant time and money trying to prove actual damages in court. Of course, if you registered before the infringement, spending money on enforcement may not be too painful when…
The infringer pays your legal fees.
This is the legal insurance I was talking about. In a successful copyright infringement lawsuit, the infringer not only pays the damages, but may also be required to pay your attorney’s fees and court costs. Keep in mind that a copyright infringement lawsuit is federal litigation and frequently the biggest hurdle to enforcing your rights are the legal costs involved, but if you take the time to register your code early…
It may be the last dime you have to spend to protect your software.
When a potential infringer is faced with a legitimate threat of paying statutory damages of up to $150,000 plus attorney’s fees and court costs, they are much less likely to infringe and much more likely to seek a reasonable settlement for any past infringement. Which means you can spend more time running your business and less time in court enforcing your rights.
There are a variety of practical and legal considerations in filing a proper software copyright registration, particularly if your code contains trade secrets you wish to preserve. An experienced copyright attorney can help you secure an enforceable copyright, protect your proprietary information, and answer any questions you have about the process.
The Valentine-Elam Law Firm is a boutique firm practicing Intellectual Property and Technology law and focusing on the representation of artists, businesses, and creative professionals. Find us at www.ArtandTechLaw.com