Registration and remedies (was: Question regarding image copyright)

On Fri, 9 May 1997, Dennis Karjala <dennis.karjala[_at_]asu.edu> wrote:
>
> One reason I asked Jessica the registration question was that
> statutory damages and attorneys fees are unavailable for
> infringements of unregistered works. That would seem to imply that
> if the CO is bouncing these things, one can is probably safe in
> using them noncommercially (as Jessica's colleague did), because
> actual damages will be hard to prove.

My take is that statutory damages and attorneys fees are available for works that were attempted to be registered, but whose registration was wrongly rejected by the Copyright Office.

Section 410(d) states that the effective date of a registration is the date on which the application, deposit and fee were received in the Copyright Office, if those materials are later determined by a court of competent jurisdiction to be acceptable for registration.

The section 412 limitation on remedies uses this effective date for determining whether statutory damages and attorney's fees are available.

Therefore, if you attempt to register a copyright in a work, and it's bounced by the Copyright Office as being non-copyright subject matter, if you prevail in a later infringing suit, your copyright is deemed to have been registered as of the day the bounced application landed in the Office. Despite the fact that the Office bounced the application, you are entitled to statutory damages and perhaps attorneys fees to the same extent as though the Office had registered the copyright.

--
Terry Carroll       | "The invention provides means for continuously
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