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Register Your Copyright (Before You Complain)

Much is made of the fact that copyright attaches at the time expression is fixed in a tangible medium. To bring us (partially) in line with the Berne Convention, which convention the US joined in 1989, “formalities” of copyright protection — the requirement to give notice by putting the © symbol on the work and to indicate the date and owner, along with the requirement to register the work with the copyright office — were excised from the statute. What we may sometimes forget is that while protection may attach at fixation, there are still good and important reasons to register a work for copyright protection. One is that statutory damages, provided by 17 U.S.C. §504 (and that range generally between $750 and $30,000 for each infringement, and can be as low as $200 or as high as $150,000), can only be imposed where the work in question has been registered prior to the infringement (according to 17 U.S.C. §412).

Judge Duffey of the Northern District of Georgia reminds us (and plaintiffs) of this in granting defendant’s motion for summary judgment on the issue of damages where defendants had copied text directly from plaintiff’s website, but removed it one day before plaintiffs registered their copyright. In this case statutory damages were clearly unavailable to the plaintiffs. Section 412 still allows actual damages to be recovered, but here the Court said actual damages were not proven because the plaintiff provided evidence of defendant’s gross revenues but failed to attribute any of these to the infringing activity (though it is not clear to me that this is the correct reading of section 412 504 which could also be read to put the burden on the infringer to show which profits were not attributable to the infringement; this latter point is one I need to look into a little, and I’ll  post a follow-up at a later date). The case is Atlanta Allergy and Asthma Clinic, PA v. Allergy & Asthma of Atlanta, LLC, and it was decided on January 19, 2010 (the case, as you might imagine from the named parties, primarily involves a trademark infringement claim).