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By July 10, 2014 Posted in Copyright

Many of you may have heard that the you can now preregister your work with the Copyright Office (if you haven’t heard it before this, you have now) and thought to yourself, “Preregistration.  Sounds important.  Should I do that?  Do I have to do that? Why would I do that?”

Boy, do you have a lot of questions!

Let me explain the purpose of preregistration and that will probably give you an answer as to whether you need to or not.

This all goes back to an issue that I’ve discussed in this blog many times before, the importance of registration with the Copyright Office  before any infringement begins.  Copyright registration must occur before any infringement or you cannot recover statutory damages or attorney’s fees in a lawsuit.  Well, one problem that arose from this requirement is that some works were infringed before they were even finished or available to the public.

This happens most commonly with albums by big name artists or blockbuster motion pictures.  Someone gets into the recording studio, makes a copy of whatever Eminem or Beyonce is working on, and then uploads it to the web. One of the most famous examples of this occurred in 2009, when Kevin Cogil uploaded nine songs from Guns N’ Roses Chinese Democracy to his Soundcloud account.  Also in 2009, someone uploaded an unfinished and incomplete workprint of X-Men Origins: Wolverine to the web. The print apparently came from an Australian special effects company.

The problem in cases like these is that because the infringement occurs before the work is completed, the creator has not yet registered the work with the Copyright Office.  So even though there has been a horrible infringement, the artist or studio can only sue for “actual damages” (which can be very difficult to prove) and can’t recover attorney’s fees or statutory damages.

Preregistration was developed to solve this problem.  If you have a work that you think might be infringed before it is put out on the market, you can preregister it.  Preregistration is not a substitute for registration but it allows the infringed party to sue before the authorized release of the work and recover statutory damages and attorney’s fees.  In order to obtain these benefits, the author must register the work within one month after learning of the infringement and no later than three months after first publication of the work.

For the vast majority of you, there is no need to preregister.  First of all, it’s expensive ($140). Second, most of you do not have works that will be infringed while they are still in development. Third, preregistration is only allowed for the following types of works:

  • motion pictures
  • sound recordings
  • musical compositions
  • literary works being prepared for publication in book form
  • computer programs (including videogames)
  • advertising or marketing photographs

So for artists and sculptors, preregistration is not even an option.  And, if you’re a screenwriter, there is no need to preregister because you should be registering the script as soon as it is completed enough that you are submitting it to agents and producers. But, if your career develops to a place where you think it’s possible that your work may get infringed before it is completed, it’s good to know that preregistration is available as an option.

For more information on the preregistration process from the Copyright Office, click here.

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