Article by William S. Ramsey, P.C.


When the United States adhered to the Berne Convention of 1886 (as revised) on March 1, 1989, things became much easier for authors and publishers of copyrightable material.
Copyright became automatic on fixing the newly created material in some tangible form. It no longer was necessary to include copyright notice to preserve an author’s rights. There no longer was a requirement that transfers of copyright be recorded with the Copyright Office. Although registration (or attempted registration) of copyright with the Copyright Office remained a prerequisite for initiating a copyright infringement suit in the U.S. by a U.S. author, the requirement for registration was dropped for foreign authors from Berne Convention countries. In general, much of the underbrush of formalities connected with copyright was cleared by the Berne Convention Implementation Act of 1988. Suddenly everything associated with copyright became easier and simpler.

The author and publisher should be aware, however, that the copyright statute still contains a powerful incentive to early registration of both published and unpublished works - it makes it economically possible for the average copyright owner to enforce his or her rights.

If the author or publisher registers her copyright according to the following timetable:
    A. If unpublished, before infringement, or
    B. If published, before infringement or within three months of first publication,
then the copyright owner may sue an infringer with the expectation of recovering both statutory damages and attorney’s fees from the infringer.

Statutory Damages.

If eligible for statutory damages the copyright owner does not have to offer any evidence of actual damages due to the infringement or any evidence that the infringer made any profits. Instead, the judge may award damages of from $500 to $20,000 based solely on arguments made by the copyright owner. This upper limit is increased to $100,000 if the infringement is shown to be willful. This provision is very valuable because it is difficult and expensive to prove damages in many copyright infringement cases. Each copyrighted matter is unique-it’s hard to prove the dollar effect of an infringer’s acts. Of course, actual damages are always available when the copyright owner can prove them.

Attorney’s Fees.

This provision needs little explanation. Reasonable attorney’s fees are awarded to the successful copyright owner from the infringer. The infringer must pay both her attorney’s fees and those of the copyright owner’s attorney. This is even more valuable than statutory damages because attorney’s fees often exceed damages in copyright cases.

Of course, to prevail in a copyright infringement case copyrightable matter must be involved and the infringer must be shown to have had an opportunity to copy and to have produced matter identical to or substantially similar to the copyrighted matter. Nevertheless there is only one reasonable conclusion for the author or publisher. IF YOUR COPYRIGHTABLE CREATION IS VALUABLE AND THERE IS A CHANCE IT WILL BE COPIED, YOU SHOULD REGISTER THE COPYRIGHT WITHOUT DELAY.

William S. Ramsey 410-740-2225