Thursday, August 5, 2010

Copyrights: The Importance of Registration

     Design professionals should carefully consider the benefits of registering their copyrights at an early date.  Working on one of my cases recently brought home the importance of timely registration.  It is possible for an architect desiring to bring an infringement claim to wait until the infringement to register the copyright. However, in so doing, the copyright owner loses the benefit of two hugely important remedies in the copyright law--statutory damages and attorneys fees.

     First, statutory damages are available to copyright owners who register before the infringement occurs.  As many folks who have defended cases filed by the recording industry know, this is a powerful weapon.  Statutory damages can range from $750 to $30,000 per infringement, with higher damages for wilful infringement.  Without statutory damages, a plaintiff must prove his actual damages.  A plaintiff may recover the infringer's profits, but in the architectural plan context, the defendant will try to reduce the gross profit by overhead and other expenses incurred.  The defendant may also attempt to allocate profits to factors other than the Plaintiff's work.

     The second reason why early registration is so important centers on the recovery of attorney's fees.  A plaintiff can recover attorney's fees only if he registered the copyright prior to the infringement.  A copyright case can easily cost a copyright owner tens of thousands of dollars, if not six figures.  These costs can erase the benefit of any recovery.  Also, the threat of an attorney's fees claim makes a critical impact on settlement negotiations and the defendant's assessment of the case.