Attention U.S. authors: U.S. Supreme Court confirms that you must register a copyright before filing suit for infringement

It’s a question that I see posed frequently among online author groups (especially by those authors based in the United States). Should I register the books I write with the U.S. Copyright Office?

To be clear, whenever you create a copyrightable work (such as writing a book), you have a protectable copyright, without needing to do anything (including register with the Copyright Office). However, you are not able to file a lawsuit in federal court arguing infringement of your copyright (whether the lawsuit is based on actual damages or statutory damages) until you have registered the copyrightable work with the Copyright Office. And most copyright infringement suits must be brought in federal court.

In May 2019, the Supreme Court resolved a circuit court split by confirming this requirement in Fourth Estate Public Benefit Corp. v. Wall-Street.com. Further, the Court determined that registration occurs, and a copyright claimant may thereby begin an infringement suit, when the Copyright Office registers a copyright (as opposed to when the claimant files the registration). Defendant Fourth Estate argued, unsuccessfully, that it could file suit as soon as it submitted its completed application for registration. The Supreme Court disagreed.

When you file a suit for infringement, you can file for actual damages (financial loss) or statutory damages (a set amount based on the relevant law). Having statutory damages available can be advantageous, especially for works that are not commercially successful or have not been released to the market. For these works, it would be difficult to show what the actual damages were, or (if you haven’t sold that many books), the actual damages might not justify a lawsuit to stop the infringing action. In any case, you are not able to file an infringement lawsuit at all (whether for actual or statutory damages) until you have registered the work with the Copyright Office.

Whether or not you are able to sue for statutory damages (which, as we’ve said, are typically higher than actual damages) depends on when you registered your work with the Copyright Office (best consult with a trademark/copyright attorney for the details).

Currently, the standard filing fee for filing an electronic registration  with the Copyright Office is $55 for basic claims. However, the filing fee is $35 if you register one work, not made for hire, and you are the only author and claimant. You can pay a special handling fee to expedite your copyright registration, which costs $800. See the fee information here.

Bottom line: Register your book with the Copyright Office immediately after publication. Hopefully, you will never have to file a copyright infringement action. However, since these lawsuits seem to be more and more commonplace, it is wise to register as soon as possible.