Myths Surrounding Copyrights
1) You have to register for copyright protection.
Of course, this is false. Every work is immediately copyright protected at the moment that it is put into a tangible medium of expression. With a few exceptions spelled ou previously in this booklet (which may or may not have value to you), your rights to your work are the same whether you register or not.
2) If you don’t have sufficient cash to enter a lawsuit against an infringer, a copyright registration will guarantee that your fees will be paid by the opposition and that you therefore won’t have to “front” the money for a suit (i.e. you will be able to find an attorney who will take the case on contingency…betting to get paid when/if you win).
Good luck. The simple facts are that few if any attorneys are going to take your case on contingency. The result – whether you registered your copyright or not, you will need to finance any lawsuits you file against infringers. This can be an expensive proposition and is unaffected by registration. And, if you think you are protected by the statutory damages provision of the copyright laws, read the next myth in our list. Finally, and most important, you are always eligible for “actual” damages. If someone has profited from your work or you have been damaged by their infringement of your work you are eligible for actual damages with or without formal copyright registration (of course, you still have to win your case).
3) In the event of a lawsuit, you will get statutory damages and legal fees if you have a copyright registration on file with the Library of Congress.
Not so fast. This is perhaps the most widespread and misunderstood myth of the lot. The fact is that a registered copyright will not guarantee that you get either of these statutory awards. Registration makes you eligible for these items, it does not guarantee you will get them (i.e. buying a lottery ticket makes you eligible to win the lottery, it does not guarantee you will win). In order to collect, three things must occur (assuming one prerequisite – that you actually go to court through a final verdict and do not settle out of court). First, you have to win the case. Second, the judge has to decide in your favor to award statutory damages or statutory fees (independent of each other). Third, the judge has to set the amount of any award. Many believe that if the first two occur then you will have your attorney fees paid for…again, not so fast. The amount of the award is purely up to the judge and is not based on actual fees you might have paid. The judge could award you statutory legal fees of one dollar. A moral victory maybe, but not a financial one. Before you make an investment in a lawsuit betting on either of these items you might want to check the frequency with which they are awarded (and the average amounts when they are awarded).
4) If you didn’t file for copyright registration before you were infringed you won’t be able file suit or otherwise defend your copyrights.
False. You can register your copyright at any time and you can bring suit against infringers whether you registered before or after the infringement occurred. Remember, protection is effective as soon as you have put your work in a tangible medium. That said, you are required to register your work before you file a federal suit, but that does not change your rights other than as noted earlier in this booklet. If you file before the infringement occurs (or within three months of publication of your work) you will be entitled to all rights of registration (including eligibility but not a guarantee of statutory damages and fees). You can still register the work after the infringement occurs and before you file suit. And, in either case you’re always eligible for actual damages.
5) A copyright registration will allow me to get both statutory and actual damages.
Not likely. In the event that you win your suit, you should expect to get actual damages and fees or statutory damages and fees but not both. If your work was truly valuable, the actual amounts may well be in excess of anything you could have hoped for from the statutory awards. Thinking about it logically, if you haven’t been damaged or no one profited from your work, what could you expect in terms of an award of either actual or statutory damages. Common sense tells us that even if you are eligible for statutory damages, since the award amount is in the sole discretion of the court, you still have to prove actual damages before getting a meaningful award. A court simply is not going to give you something for nothing. Either way, actual damages must be proven.
