KEEP YOUR CREATIONS

Register Your Valuable Promotional Material with the Copyright Office

Promotion and advertising are important parts of the budget of any business, whether for-profit or non-profit. In order to bring in customers, clients, and donors, it is imperative to create and hone your promotional efforts for your target public.

Most large companies with important promotional materials have in-house or outside counsel who advise them to register copyrights for important company properties, including promotional material. It is likely, however, that many small and medium-size businesses are missing out on this legal protection.

As we explained in The Annals of Copyright Number 6, Should You Register Your Copyright?, when you create any work, it is copyrighted from that moment. However, an owner must register that work with the U.S. Copyright Office before it can enforce that copyright in federal court.  17 U.S. Code 411(a).

Two major benefits that may be available to a copyright owner that registered its work either before it was infringed or within three months after it was first published are attorney fees and statutory damages – i.e., damages that the owner does not have to prove, but are set in a range provided by the statute.  17 U.S. Code 412  A copyright owner whose registration does not meet those requirements can still file suit but would only be able to obtain damages that it can prove, as well as an injunction. It also could not recoup its attorney fees.

Legal fees for copyright cases can be high. If you win your infringement suit and you qualify under section 412, you can ask that the court order the losing infringer to reimburse your attorney fees. While an award is discretionary, many copyright holders have persuaded judges to direct such attorney fee payments, sometimes even in excess of the damages awarded for the infringement.

It can also be difficult to prove damages in a copyright case. You may not be able to show what actual damages there were. But if your registration meets the registration requirements, in addition to attorney fees, you also can seek statutory damages. These range from $200 per work for innocent infringement up to $150,000 per work if the infringement was willful.

To determine whether you should register your promotional materials, you need to ask yourself what will happen if someone rips off your successful promo. You should consider how much staff effort and budget went into its creation and how much you have paid independent contractors, whether marketing experts, digital designers, printers or others. If the budget that you invested into developing your promotional material is extensive, and if that material brings considerable business or donations into your company, you should preserve your ability to prevent others from profiting off your investment. In contrast to the large amount you could lose because of infringers, the cost of applying for a standard copyright registration is $35.00.

For further information, please contact one of our attorneys: Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

September 2, 2016