There is no shortage of things to get done before the end of the year, so don’t let your copyright concerns fall by the wayside.

In my last post, I shared one important task for companies with DMCA agents to complete before year-end: re-file your registration with the U.S. Copyright Office. There is one more important task to complete if it is relevant to your business.

Task 2: Complete a Year-End Review of Your Original Works

Copyright registration is voluntary. You do still own the copyright to original works without registration with the U.S. Copyright Office. However, there are many reasons copyright registration may be important for your business interests.

For one, you cannot file civil action for copyright infringement until you register. Previously, the majority of circuits held that filing the application satisfied the requirement. But this summer, the Eleventh Circuit joined the Tenth Circuit (and possibly the Seventh Circuit) to require that the U.S. Copyright Office act on an application for registration before you may file suit. (Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 856 F.3d 1338 (11th Cir. 2017).)

That means you may have to wait eight months or more after filing the application – or pay additional fees to expedite the process – before you can file a copyright infringement lawsuit. Particularly in cases where a temporary restraining order is not suitable, this delay can cause significant problems.

Additionally, when you register your copyright, you can seek statutory damages (not just actual damages) and request attorney fees if your lawsuit is successful. This provides your attorney with additional leverage during the process.

It pays to take time at the end of every year to look over your business’s original works. Consider which assets may have the highest likelihood of infringement or the highest value to your company and thus benefit from copyright registration.

If you need help conducting this review or filing your registrations with the Copyright Office, contact the Marks Gray Intellectual Property team for assistance.