What does the backlog at the Copyright Office mean for Authors?

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Posted by John E Grant on May 20, 2009

The Washington Post reported yesterday that the backlog of paper-based copyright registrations at the U.S. Copyright office is approaching two years due to unforeseen glitches in the Office’s new registration software. For anyone who has tried to register a copyright through the online eCO system, this will come as no surprise—the interface is terrible, the response time is slow, and the learning curve is steep. Still, authors who manage to work their way through the online system are rewarded not only with an extra $10 but also can hope to get their applications processed in about 6 months rather than 18+. Not bad, until you realize that the original promise of the eCO (”electronic Copyright Office”) system was that it would take less than a month to get a certificate for online applications.

The Post article is helpful in showing the problems within the office, both the disaster of the software itself and the painful lack of foresight shown in its implementation. In order to add some human interest to the reporting, however, the author tells the stories of three authors (all songwriters) who have been affected by the problems. Their tales of woe add poignancy to the article and attempt to illustrate how government incompetence is preventing ordinary people from making money from their creative works.

Problem is, the perceptions of all three are wrong. There is little reason to delay marketing your works just because you don’t have a copyright certificate in-hand. The Copyright Office problems only serve to delay, not eliminate, an author’s statutory benefits to registration. And most copyright rights don’t require registration at all (although enforcing them may). Read on or contact me for a free 20 minute consultation to learn more.

Two of the tales follow roughly the same pattern: Songwriter has written a masterpiece, but is prevented from performing it to the public or showing it to potential publishers because he or she can’t get a copyright certificate due to the backlog. Without a copyright certificate in-hand, the theory goes, the artist runs the risk that someone will just steal the song, pass it off as their own, and leave the poor songwriter with no legal recourse. Totally, totally false. A brief review of copyright law will show why.

Registration is not required for copyright protection.

Copyright protection vests in the author of an original work at the moment the work is fixed in a tangible medium of expression.

As soon as you put pencil to paper, brush to canvas, fingers to keyboards, or click a shutter, you’ve fixed a work. As long as it can be perceived by another person, even if you etch it in a grain of rice and need an electron microscope to see it, you have copyright protection.

While there are certainly benefits to registration, as discussed below, registration is not necessary to gain protection under the law. Moreover, most of the benefits to registration accrue based on the date you apply for registration (assuming your application is complete), not the date you receive your certificate.

Benefits of Registration

Registration provides several important benefits to authors and copyright holders:

(1) Registration is a prerequisite to filing a lawsuit to enforce your copyright.

This means that you have to register a work in order to seek judicial enforcement of your copyright rights. This includes filing a lawsuit seeking damages for infringement or even just seeking an injunction to get the infringing work removed from circulation. But for the purposes of filing suit, you can file the registration at any time; you don’t have to do so before the infringement occurs (although, as you’ll see, there are other benefits for doing so).

There are two reasons why the copyright office delays don’t have a fatal impact on registering works for the purposes of filing a lawsuit. First, the statute of limitations for bringing a copyright claim is three years. If you discover an infringement and apply to register your copyright immediately, then even if it takes 2 years to get your certificate you can still file suit in time. Granted, this is less than ideal, particularly if you want to seek an injunction to get the infringing work removed NOW, but it technically doesn’t prevent you from enforcing your rights.

Important Note: Calculating durations for statute of limitations purposes is notoriously tricky—if you think you have an infringement claim you should not delay talking with an attorney in order to best preserve your rights.

The second reason is that there is a way, albeit an expensive one, to move your application to the head of the line. The Copyright Office allows for expedited handling of registrations in certain situations, including when there is a publishing deadline or actual or prospective litigation over the work. The fee for expedited handling is $685 (plus courier costs to have someone personally deliver the application to the Copyright Office), so your claim had better be worth the extra money. But as with many things, where there’s a checkbook there’s a way. Also, you can still seek expedited handling even if you’ve already sent in a registration to the Copyright Office; you have to re-pay the registration fee on top of the extra handling fee, but at least your work won’t get stuck in the backlog with no way out.

Also important is that the effective date of copyright registration is the date the Copyright Office receives a completed application, not the date they issue your certificate. (A completed application means receipt by the Copyright Office of the application paperwork, payment for the application fee, and the required deposit copies of your work.) While this isn’t helpful in most jurisdictions when you want to file suit, it is important for the purposes of the other benefits of registration below. (Most circuits—including the 9th, which covers Washington State—require that you have your copyright certificate in-hand in order to file a claim. In a few you only need to have applied for registration.)

(2) Registration before an infringement occurs (or within the first 3 months after you publish a work) entitles the copyright holder to seek statutory damages and legal fees in an infringement lawsuit.

Statutory damages and legal fees can be important tools for a copyright holder: statutory damages because they help eliminate some of the burden and cost of calculating actual damages in an infringement suit, and legal fees for reasons that should be self-evident. Statutory damages are an election for copyright holders, not a requirement, so if your actual damages are higher than the statutory range, you can always opt to pursue compensation for your actual harm.

Perhaps more important, however, is that the threat of statutory damages and legal fees gives the infringing party a strong incentive to settle out of court rather than risk paying for their lawyer as well as your lawyer and a hefty damages award.

As I mentioned above, however, the effective date of registration is the date you send your completed application to the Copyright Office. So as long as you keep good records of your application (and send it return receipt requested so you can verify the receipt date), you can still show any infringer that they’ll be subject to the statutory penalties and therefore nudge them towards settlement.

The bottom line: register your works! The application fee is well worth the statutory benefits and the delays in issuing a certificate don’t have a major impact on your rights. Moreover, better to get in line now and hope you get a certificate sooner than later rather than having to depend on the expedited process (and its hefty fees) when you actually need to produce your certificate.

(3) Registration creates presumptions of ownership and validity of your copyright.

These presumptions can be useful tools in litigation, especially when there are disputes regarding authorship of a work, but here too the copyright office delays don’t necessarily deprive you of these tools. For one thing, the presumptions are rebuttable—evidence that disputes the information on the application can effectively eliminate the tools. Here too, the effective registration date is what is important, not the date you get a copyright certificate, so the delays only serve to delay, not eliminate, an author’s statutory benefits to registration.

Conclusion: Register your works, but don’t wait for your certificate to market them.

For much creative content, timliness is the key to making money. A song that sounds fresh and new today may sound dated or cliched a year from now. For some authors, it may make sense to seek expedited registration right off the bat (assuming you can show one of the allowed rationales for expedition), but for most it doesn’t make much difference when you get your certificate.

As always, you should talk with an attorney to assess your individual circumstances—this article is meant to provide general information, not legal advice. If you have specific questions about your situation, I’d be happy to talk with you in a free 20 minute phone consultation. Please don’t hesitate to contact me to schedule a time to talk.

[Update: Jefferson Coulter at Copyright or Wrong asks whether the backlog means it is time for the U.S. to abandon the registration requirement altogether. Definitely worth a read for copyright theorists.]

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