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Why Won’t The Attorney Take Your Case
?The simple answer is that you did not register your copyright with the Copyright office.
Your copyright protection begins at "fixation", and failure to register your copyright does not extinguish that protection, nor does failing to deposit copies of the work with the Copyright office affect your copyright. However, the failure to register and deposit copies of your work has SIGNIFICANT legal consequences. Again, Registration and Deposit are optional steps in the process. However, the failure to take these optional and fairly inexpensive steps can affect the entire outcome of your dispute:
The owner of a copyright cannot sue for infringement unless and until the copyright is registered.17 USCA § 411(a). This problem can be fixed. As long as the copyright is registered you can sue, even though the registration is made after you have discovered that some one has infringed your work. You can still register the work using a "Request for Special Handling form" if you are in a hurry, as well as using the appropriate copyright form for the work you are registering. In this case that would be form SR. As long as the registration is completed prior to the start of litigation there should be little problem.
The owner of the copyright stands to lose some remedies for failing to register the work early enough. This is the big threat. Remedies are simply things the court can do in remedying the unauthorized copying or distribution of your work. These are the key reasons why registration is a necessity:
Statutory Damages
 | NO statutory damages are awarded for infringements that occur prior to registration of the work. 17 USCA § 504(c). The exception to this rule is if the registration of the work is accomplished within 3 months after the first publication of the work –then all is forgiven. 17 USCA § 412(2). |
Statutory Damages are provided by 17 USCA § 504, which states in relevant part: " . . . an infringer of copyright is liable for either –
(1) the copyright owner’s actual damages and any additional profits of the infringer; or
(2) statutory damages."
When suing someone for infringement of your copyright because they have violated one of your exclusive rights [see "What is a Copyright?"] you get a choice –you can prove your actual damages or instead accept the statutory amount, i.e., the amount provided by the statute –which runs from $500 to $100,000 per infringement. The law allows you to substitute an amount provided by the statute instead of trying to prove your actual damages because actual damages are often very difficult to prove.
Example 1: If instead of hearing your song played on the radio you hear through the grapevine that Seedy Records was going to press and distribute copies of your recording. You can sue for infringement in advance if you have registered your copyright [17 USCA § 411 (b)] and seek an injunction to prevent any further distribution [17 USCA § 502]. Additionally, you can seek to impound and destroy any copies that have been made and any equipment that made them [17 USCA § 503]. At this point have you suffered any actual damages? Probably not at this point. Statutory damages then may be your only option for recovery.
Statutory damages are thus an option in cases where actual damages are difficult to prove and gross profits of the infringer have not been realized. 17 USCA § 504 (b) makes clear that this is not an actual damages and profits calculation. Rather, profits are only added to the actual damages to the extent that they were not taken into account in calculating the actual damages. This means then that the plaintiff in a copyright case should try to prove both actual damages and profits. The key is that the plaintiff needs only to establish the gross profits earned by the infringer. Once the plaintiff has established this number the burden then shifts to the infringer to show expenses in making the profit to reduce the gross to a net amount.
Example 2: What if the infringer instead sampled the melody line or catch phrase of your song but there was also some public domain material (free for anyone to use), another sample not owned by the plaintiff (the person suing) and some original authorship by the infringer all on the same song?
In this case the burden is on the infringer to prove any apportionment of the profits. 17 USCA § 405(b). That is, if the infringer claims that the gross profits were not due to the infringement but due to elements not owned by the plaintiff, then the burden is on the infringer to establish the amount of the profits that were earned by these other elements in order to reduce the gross profit amount. In Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825 (1940), MGM was found liable for infringement when it created a motion picture based in part on a play written by Sheldon. However, in awarding profits to Sheldon, the court reduced the award by 80% giving Sheldon only 20% of the award. Why?
The court reasoned that only 20% of the profits were due to Sheldon’s play contribution. Noting that there were a number of famous stars in the movie and that people would have come out just to see them perform in the movie the court determined that the majority of the profits were earned by star power and not Sheldon’s play. The court made an additional deduction after finding that the plot from the movie and Sheldon’s play were largely from the public domain –material that Sheldon could not own and therefore were not copyrightable. The moral of the story –you can only sue for infringement regarding those elements you actually own.
Statutory damages, then may the best opportunity for relief. 17 USCA § 504(c) allows the copyright owner to elect at any time before a final judgement to recover an award of statutory damages for all infringements. The plaintiff is entitled to a minimum recovery of $500 and up to $20,000 as the "court considers just." 17 USCA § 504(c) (1). This award is with respect to any one work. If the court finds that the infringement was willful then it has the discretion to award as much as $100,000 per work. 17 USCA § 504(c) (2).
In contrast, if the court finds that the infringement was "innocent" and that the infringer was not aware and had no reason to believe that his actions constituted an infringement of copyright the court can reduce the statutory award to a minimum of $200 per work. 17 USCA § 504(c)(2). In certain narrowly defined circumstances the court can "remit statutory damages", that is, reduce the award to $0 if the infringer "believed and had reasonable grounds for believing that his or her use of the copyrighted work was fair use under § 107. 17 USCA § 504(c)(2).
Going back now to our introduction example - it is still possible for you to register your tape and recover statutory damages if you file your registration properly. Compare this with the prospect that 5 years has passed and you heard your songs for the first time after having moved back form India –You would not be able to recover statutory damages for the 5 year period.
Attorney Fees
The second consequence of a failure to register your copyright may have a significant impact on your ability to prosecute for infringement. If you have not registered:
| NO attorney’s fees are recoverable. This is the main reason why the attorney would most likely take your case. Attorneys like to be paid and infringement actions are not cheap. More importantly, attorneys like to be paid by the other side. The biggest problems between attorneys and their clients are over the cost of the representation. If someone else is going to pay the bills –who cares how much it costs. So as a rule attorneys like to see that their clients fees are paid by their clients enemies. This is good business. 17 USCA § 505 provides the following: |
In any civil action . . . the court in its discretion may allow the recovery of full costs by or against any party other than the United States . . .[T]he court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.
While this is not carte blanche to run up huge attorney’s fees it is incentive for an attorney to take the case. Nothing is automatic –but the chance to recover from somebody else sweetens the pie.
Conclusion
While registration is not prescribed under the Copyright laws, the failure to register can have some important legal consequences for the musician who fails to take the steps necessary to register their work. The "poor man’s copyright" is no protection against infringement. While it may help to prove the date of first fixation of the work and establish the moment in time that the work was first created, the real power of copyright lies in the ability to recover damages for the infringement. The failure to properly register your work can lead to an inability to collect statutory damages that are often the only relief available to a plaintiff. Additionally, registration allows the recovery in some cases of attorney fees, which makes it easier on your wallet and on your relationship with your attorney.
