“Law For Art’s Sake” Series #2
As with all legal matters, the answer is: “It depends.” It is true that unregistered works retain the same rights as registered works; however, registration has some clear advantages. The most important advantage is that copyright registration is a necessary step in order to bring an infringement suit against someone who is copying, using, or selling your art without permission. Before you can even sue an infringing party, you must first register your work with the US Copyright Office. This registration requirement has been upheld as recently as March of 2019 in the unanimous Supreme Court decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com. Furthermore, registering a work before infringement begins gives you the opportunity to recover attorney’s fees and additional damages in the case of a successful lawsuit. Therefore, the most significant advantage you get from registering a copyright is the protection and additional damages that can be recovered in the potential case of infringement.
Even though copyright registration may seem necessary, you have all the same rights in your work, even if you don’t register. This means you can still license, sell, and assign rights in a work that is not registered. Keep in mind that registering a copyright does have a cost, and in some instances, that may not be practical for you. Moreover, if you are not the owner of the copyright, or the art was work-for-hire, then you will not be able to register the work.
At the end of the day, it is up to you to determine whether copyright registration is right for you and your art. You need to carefully weigh the risk of someone else infringing on your work against the practicalities of your personal finances. Some questions to ask yourself when making the decision are:
● Is my art being marketed to a large audience?
● Is my art displayed online?
● Am I licensing or planning to license my work?
● Do I have a large social media following?
● Am I working in close proximity to other artists?
If you answer “Yes” to questions like these, your art may be at an increased risk of infringement. Where there is a greater risk of your art being infringed upon, the more important it is to protect it by registering a copyright. If you are worried about possible infringement, register sooner rather than later. Registering early has no downsides and can help guarantee that you can maximize your damages in an infringement case while simultaneously allowing you to avoid paying an attorney out of our own pocket. The last thing you want is to be unprepared and potentially face a more difficult infringement case with legal fees you are on the hook for.