Recently an artist came to see me about a possible infringement case. The artist had created some artistic works several years ago, but shared the material only with some friends. One of the friends turned over a copy of one of the works to a producer without the artist’s permission. After the producer created a new work incorporating the artist’s original work, the artist justifiably feels violated.
One the first questions I ask a potential client is whether he filed a copyright registration after creating the work. The answer is usually “no.” Since the original art did not have a copyright registration, the artist was not able to recover attorney’s fees or statutory damages (ranging from $750 to $150,000). Without those remedies under the Copyright Act, the copyright owner will be limited to an award of actual damages — either his own lost profits or the infringer’s illegally gained profits. Either measure of damages can be difficult to prove.
Is it fair that someone who did not register a copyright for an unpublished work — one that was not shown to the public for sale or other exploitation — to lost valuable remedies? Good question. “No”, I would say, “but that’s the law.” If your copyrighted work is valuable to you, you should file copyright applications. Otherwise, a court may well find that the work is worth far less to an infringer than it is worth to you.