Why should I bother to register my copyright in the United States?

The Berne Convention for the Protection of Literary and Artistic Works, is an international agreement governing copyright, which was first presented in Berne, Switzerland, in 1886. The Berne Convention lays out a framework which nations can choose to adopt. The purpose of the Berne Convention was to create consistency in how copyright law treats citizens of different nations and to harmonize the laws of the nations that choose to adopt the Berne Convention. The Peoples Republic of China and the United States of America are both parties to the Berne Convention. This means that a citizen of China that creates a copyrighted work is granted a copyright in the United States as well.

The Berne Convention mandates that a copyright exists the moment a work is fixed in a tangible medium. Fixed in a tangible medium is a legal term that describes the process of preserving a copyrighted work. Painting a picture on a canvas, writing a novel down on paper, saving a digital photograph to a computer hard drive would all be considered fixing. Verbally telling a story or a fireworks show could never be copyrighted because they are ephemeral. But, a video recording of someone telling a story or a fireworks show could be copyrighted.

The question then becomes, why do people register their copyright to a work? Because copyright is granted automatically when a work is fixed, and because China and the United States are bound by the Berne Convention to respect the copyright of each other’s citizens, it makes registration of a copyright seem pointless. However, registration of a copyright in the United States is a very inexpensive process that grants important additional rights.

To register a copyright in the United States the copyright owner must submit an application to the Copyright Office of the Library of Congress. Applications can be submitted via mail or online at www.copyright.gov. An application for copyright registration contains three essential elements: a completed application form, a nonrefundable filing fee, and a copy or copies of the work being registered with the Copyright Office. This is the only valid way to register a copyright in the United States, beware of stories to the contrary.

The key features of registering a copyright in the United States are:

A certificate of registration creates a public record of key facts relating to the authorship and ownership of the claimed work.
Satisfies the deposit requirement – an often overlooked law that two copies of certain published materials must be deposited with the Library of Congress for circulation.
Before an infringement suit may be filed in court, registration (or refusal) is necessary for works of United States origin.
Registration establishes prima facie evidence of the validity of the copyright and facts stated in the certificate when registration is made before or within five years of publication.
When registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorneys’ fees, and costs.
Registration permits a copyright owner to establish a record with the United States Customs and Border Protection for protection against the importation of infringing copies.

A sharp lawyer will notice, that registration is only required for works of United States origin. Under the Berne Convention a copyright infringement suit involving foreign is work cannot be dismissed, if the lawsuit if filed properly. But see DIGITALB, v. SETPLEX, LLC, 17-cv-4102 (S.D.NY. 2018) where an Albanian Television publisher did not register their copyrighted work before filing a lawsuit and did not properly plead their case. The case was dismissed in favor of the defendant.

Registration of a copyrighted work in the United States grants the copyright owner significant additional rights for an extremely low cost.

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