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US law considers your work protected from the moment of creation, even if you do not register it at the United States Copyright Office (“USCO”). However, registration adds a powerful layer of protection for your work, especially if you find yourself in a legal dispute.

The most valuable benefit of registering copyrights is the ability to file a lawsuit for copyright infringement. In most jurisdictions, a copyright owner cannot file a lawsuit to enforce/protect its copyrights until the U.S. Copyright Office has issued a registration.

A registration before, or within five years of, publication of the work establishes prima facie evidence of the validity of the copyrights and the facts stated in the registration certificate which facts include the identity of the copyright owner. A necessary element in ant successful copyright litigation.

As to damages, if you register your work either prior to it being infringed or up to three months after publication, in the event of a successful claim, you will be eligible to receive statutory damages and, at the court’s discretion, reimbursement of legal fees.

The owner of registered copyrights is also eligible to participate in a U.S. Customs and Border Protection (“CBP”) program. The CBP will seize and detain imported goods that violate intellectual property rights in the United States. Registration is required to participate in this program.

Lastly, USCO records can be used to publicly identify the creators and copyright owners of registered work, so you can also include contact details in case someone would like to license your images.

The factors that are considered in determine whether an unauthorized use of materials qualified as fair use are:

Purpose And Character Of The Use

This fair use factor refers mainly to the function for which the copied material is being used. Copyright law favors encouraging scholarship, research, education, and commentary. However, an educational or scientific use that is for commercial purposes may not be excused by the fair use doctrine. A commentary that satisfies fair use must be transformative. A transformative use must add something new, with a further purpose or different character, and must not merely substitute for the original use of the work. In evaluating whether a use is transformative, it is determined whether (1) the material taken from the original work has been transformed by adding new expression or meaning and whether (2) value was added to the original work, thereby creating new information, or new aesthetics, or new insights and understandings.

Nature Of The Copyrighted Work

This factor refers to the nature of the work that is being copied. Specifically, this factor differentiates between factual works and creative works. Copying a factual work, such as a biography, is more likely to be fair use than copying a fictional work, such as a romance novel or horror movie.

Amount Of Copyrighted Work Used

This factor refers to the quantity and quality of the copyrighted material used. Specifically, if the material used includes a large portion of the copyrighted work, fair use is less likely to be found. Alternatively, if the material used employs only a small amount of copyrighted material, fair use is more likely.

Effect Of The Use On Potential Market For The Work

This factor refers to the effect of the use on the potential market for the work that was copied. It considers whether unauthorized use hurts the current market for the original work and/or whether the unauthorized use could cause substantial harm if it were to become widespread.

Yes, owners must register their copyright before filing a lawsuit for copyright infringement. The Supreme Court held on March 4, 2019, in the case of Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC that an owner must have already obtained a registration from the U.S. Copyright Office prior to bringing a copyright infringement lawsuit. It is no longer sufficient to simply file a copyright application prior to filing a copyright infringement lawsuit.

A creator of an original work owns a copyright in his work just by creating it. However, the creator cannot enforce that copyright without first obtaining a copyright regurgitation.

 John C. Laurence, Esq.

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