Law Office of Richard M. Russell
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Falmouth, Massachusetts 02540

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Copyright in Promotional Material

If you’ve thought about creating your own literary or artistic works (perhaps for promotional purposes), you’ve probably learned that copyright protection comes into existence upon creation of the work, without the need to include a copyright notice or register the work with the copyright office.

The seemingly generous copyright rules, however, may create a false sense of security, primarily the rule that makes registration optional.

While registration is not required to obtain copyright protection, registration with the copyright office is required before commencing litigation to enforce copyright protection. More importantly, registration within three months of publication * affords the copyright owner the potential to recover statutory damages and attorney’s fees in litigation.

Without access to statutory damages, a copyright owner whose work is infringed is entitled only to actual damages. In a copyright infringement case, however, establishing actual damages may be much more difficult than establishing infringement. Actual damages can be especially complicated if the infringer uses just a part of a copyrighted work or includes another’s copyrighted work in a much larger work. Determining the value of the incomplete work or the contribution of the protected work to the profits of a larger work can be quite complex. Further, when actual damages are small, statutory damages, which range from $750 - $30,000 in the discretion of the court (or more in egregious cases), may be the only remedy that makes enforcement practical.

Finally, registration within three months of publication permits a copyright owner the opportunity to recover attorney’s fees incurred in litigation. In fact, if a party fails to timely register its work and later initiates litigation for copyright infringement, that party is in the position that if it prevails, it may not recover its attorney’s fees, but if it is unsuccessful, if may be required to pay the other parties’ fees.

Suffice it to say, anyone who is sincere about protecting his or her original works will timely register those works with the copyright office.

* In general, a work is published when it is distributed without restriction, whether or not a fee is solicited or collected.