Copyright Registration and Statutory Damages – Timing Is Everything

Typically, one thinks of copyright as the © symbol ever present in books, music and movies. The copyright symbol is also commonly seen at the bottom of web pages, such as this one, along with a year and something to the effect of “All Rights Reserved.” But what exactly does copyright protect anyway? My services page provides a brief description of what copyright protects and how it applies to and can protect fitness and training entrepreneurs. It’s important, however, to explore an important point. Namely, the failure to register (and timely registration) important and unique website content with the United States Copyright Office limits your rights to that of a yipping Chihuahua. All bark and no bite. Why is that? The Copyright Act requires that content (literary works) be registered before bringing a copyright infringement lawsuit against an infringing party. Even though you have the right to exclude others, for example, from copying the content onto their website without your permission, you can’t enforce it until registration is at least attempted.

A number of fitness and training businesses use unique content on websites, blogs, etc. to drive Google and other search rankings. We’ve all heard from Search Engine Optimization (SEO) experts that first page placement, and really, being among the first three rankings, is critical to bringing internet traffic to your site. A lot of time, money, creativity and effort goes into identifying customer search terms and crafting content. And it’s a dogfight to get onto the first page, and to stay there. So imagine finding yourself in a situation where you’ve worked hard to craft the content only to have a free loading competitor steal it and make a few minor tweaks before posting it to his or her website. Surely, you’ll experience a range of different emotions. But the commercial harm occurs because duplicate content can adversely impacts your search rankings, and therefore your bottom line.

Here’s a hypothetical. Company A sells training products through its website. Each product has a thorough and well crafted description. The products are exclusively sold online. In January 2011 Company A launches its website and begins selling products to online customers. In April 2011, Company B, which sells similar products, copies Company A’s product descriptions but changes about 20% of the content. However, the important key words and search terms remain identical. In May 2011, Company A catches wind and immediately sends Company B a letter requesting that Company B stop using the descriptions and to taken them down from the website. Not surprisingly, Company B ignores the letter. Company A, however, cannot sue Company B for copyright infringement until it registers the product descriptions with the U.S. Copyright Office.

Once registration occurs, Company A is ready to give the green light to its lawyers to prepare and file the complaint. Cue up the sound of screeching tires. A major problem under the hypothetical exists. Before discussing the problem, the difference between actual damages and statutory damages under the Copyright Act needs to be flushed out. Actual damages includes money lost by Company A and money gained by Company B due to infringing activity. As you can imagine, this is extremely difficult to prove. On the other hand, you don’t have to prove money lost and gained to recover statutory damages. Company A has to show that Company B infringed upon Company’s A registered work without having to prove actual damages. Statutory damages include a wide range, from $750 to $30,000 for all infringements of a separately registered product description, and if a willful infringement is shown, statutory damages can rise to $150,000 per infringed work. If Company A separately registers the product descriptions, each is considered a different work. If Company B copies 10 descriptions, which have been separately registered, Company A is entitled to 10 separate statutory damage awards (between $7,500 and $1,500,000). The figure can get quite large.

Why the screeching tires then? Because the infringing act (April 2011) occurred after publication (January 2011) but before the date of registration (May 2011 or later). The Copyright Act prevents Company A from recovering statutory damages (and reasonable attorneys’ fees) unless it registers the published product descriptions before the infringing activity occurs. A safe harbor provision exists if registration occurs within 90 days of the content first being published registered. But in the hypothetical more than 90 days has elapsed between publication and registration, with the infringing activity occurring before registration. And it doesn’t matter even if Company B’s infringing activity continues to occur after registration. Company A is limited to actual damages, and as briefly mentioned above, without any ability to recover reasonable attorneys’ fees. Time really is of the essence when it comes to copyright registration and infringing activity.

There are a couple of other issues as well, exactly when publication occurs and when’s the date of registration. But that’s another topic for another day. Although, it’s worth noting that there’s a lot of uncertainty of the publication date of strictly online works. But in the hypothetical, the descriptions were used to sell products, and those products were offered for sale in January 2011. So there’s a stronger likelihood that a court will find that publication of the product descriptions occurred when the website was launched in January 2011.

The right to recover statutory damages and reasonable attorneys’ fees gives the copyright owner a lot more bite along with the bark. And as you can imagine, the infringing party will most certainly back down quicker and settle short of litigation. Copyright registration through the U.S. Copyright Office is $35 per work. And it’s something that the fitness and training entrepreneur can do on his or her own without having to hire a lawyer to represent the business. Although, you certainly have the right to hire a lawyer to assist you in the copyright registration process.

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