Which Came First, the Registration or the Infringement?

Which Came First, the Registration or the Infringement? by Mark Kaufman

Filing for copyright registration is extremely important for a number of reasons. Most people already know that they cannot sue for infringement until after registration. What they might not realize is that they are not entitled to statutory damages or attorney’s fees for any infringement that occurs prior to registration.

This distinction should not be underestimated:

  • The potential for having to pay the plaintiff’s attorney fees is often enough by itself to motivate a defendant to settle out-of-court in an infringement case.
  • The amount of statutory damages are always at the discretion of the judge and can vary greatly, but it can range up to $150,000 per infringement (if the plaintiff demonstrates that the infringement was willful).

But neither of those options would be available to you if your copyright were infringed before you got around to registering the copyright (unless you registered within three months after the first publication of the work).  You would still have access to actual damages, but those can be relatively small.

Consider the unfortunate story of one client who learned this lesson the hard way. He had written a jingle that ended up being used on a daily television program. He wasn’t paid for his work, but since he hadn’t registered it, all he could get if he sued would be a few thousands of dollars.

That was potentially a very valuable copyright. The recurring royalties could have been significant—perhaps significant enough to justify litigation—and if the infringing party had faced the threat of having to pay the author/composer/content-provider’s attorney fees, they might have decided it was better just to pay him as they should have done in the first place. Instead, absent timely registration, his potential upside was very limited.

The filing fees are only $35 for an individual (that is, a single author, same claimant, one work, not a work made for hire) and $55 for a company (all other applications) to file for a copyright registration.

While utilizing an attorney to help you is certainly an option, the process is theoretically designed to be accessible to lay people. Whether you choose to file for registration or have an attorney help you, the peace of mind, security, and legal “teeth” it provides will make copyright registration well worth the price.

Mark KaufmanMark S. Kaufman
Kaufman & Kahn

747 Third Avenue
32nd Floor
New York, NY 10017
Tel. (212) 293-5556
Fax. (212) 355-5009


  • vivian greene Permalink

    I filed my first group of 24 copyrights when I was still in college and published the first line of non-books (greeting cards) carried in Barnes & Noble.
    I promise you – I could have lost my entire career had I failed to do so.
    I’m very prolific, and I file for work before and after it is published. Otherwise…even decades later…I find publishers – even a lawyer, and a moving company (took 9 years to win our judgment) can steal the work. Register. Register. Register!

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