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Promptly Register Your Copyrights or Lose

By Stephanie Robinson

Companies and individuals with copyrighted materials should make certain to register their copyrights with the U.S. Copyright Office as soon as practical after the material has been published. If an application for registration is not made within three months of publication, the copyright owner will lose the right to recover statutory damages and attorney?s fees. The recent decision in Thomas M. Gilbert Architects, P.C. v. Accent Builders and Decelopers, LLC, 2008 WL 2329709 (E.D. Va. 2008), demonstrates the wisdom of promptly registering a copyright. Thomas M. Gilbert Architects, P.C., an architecture firm in Richmond, Virginia filed suit against Accent Builders, a developer of townhome projects. Gilbert authored plans for the townhome project and registered those plans with the U.S. Copyright Office on August 16, 2007. The Certificate of Registration lists July 17, 2003 as the date of first publication of the plans. In November of 2007, Gilbert sued Accent claiming that Accent had infringed on Gilbert?s copyrights by copying and modifying the plans, distributing copies of the modified plans to subcontractors, and using the modified plans to construct additional townhomes. In its complaint, Gilbert sought statutory damages. The court granted summary judgment in favor of Accent on Gilbert?s claim for statutory damages. Under the Copyright Act, the owner of a copyright may seek two types of damages ? (1) actual damages and infringement profits or (2) statutory damages. But statutory damages are not available to every owner of a copyright. Specifically, under 17 U.S.C. § 412(2), statutory damages may not be awarded for any infringement that began after the first publication of a work and before the effective date of its registration unless the work is registered within three months of its initial publication. Even if acts of infringement occur after the work is registered, the result is the same. For purposes of section 412, infringement commences ?when the first act in a series of acts constituting continuing infringement occurs.? The court noted that Accent began infringing Gilbert?s copyrights before May 2006, and Gilbert did not register its copyrights under August of 2007. Accordingly, Gilbert was barred as a matter of law from seeking statutory damages. It should be noted that section 412 also applies to an award of attorney?s fees under 17 U.S.C. § 505, although the court in Gilbert did not rule out an award of fees on that grounds.

Full post as published by Business and Technology Law on June 18, 2008 (boomark / email).