Copyright Registration: Steps Authors Should Take to Ensure Their Work Is Protected

The Copyright Act of 1976 (effective January 1, 1978) provides that U.S. copyright subsists in a work from the time of creation, whether or not it is registered. Yet registration is critical to an author’s ability to enforce their copyright in U.S. works.

Under copyright law, if a work was first published in the United States or was authored by a U.S. national, domiciliary, or habitual resident, the copyright owner cannot bring a lawsuit for infringement until the Copyright Office has made a decision on a registration application—i.e., it has either registered or refused to register the work.

The proposed $1.5 billion settlement in the Anthropic class action case has underscored the vital importance of registration. The class of works covered by the Anthropic settlement is limited to books downloaded by Anthropic from LibGen or PiLiMi (a mirror of Anna’s Archive) that have ISBNs or ASIN numbers and that were (i) registered within five years of publication and (ii) were registered either before being downloaded by Anthropic (as of August 10, 2022) or within three months of publication. Unregistered books and books registered after these time periods are outside the class, meaning that their copyright owners will not share in the payout.

Legal Significance of Registration

Why are there such strict registration requirements in the Anthropic case? The class was defined to track U.S. copyright law, which makes registration a precondition to certain remedies in an infringement suit.

Infringement Damages

Although registration is not required for a work to be copyrighted, it is required for most works in order to bring a lawsuit for infringement. Timely registration is also required for the copyright owner to be eligible for attorney’s fees and statutory damages (meaning that actual damages do not need to be proven). Statutory damages can range from $750 to $30,000 per work for unintended infringement and up to $150,000 per work for willful infringement. But to qualify for these statutory damages and for the ability to claim attorneys’ fees, a work must be registered before the infringement commences or within three months after the work was first published.

Presumption of Facts

U.S. copyright law also provides that if a work is registered within five years of publication, then all the facts in the registration are presumed correct and do not need to be proven by the plaintiff in an infringement lawsuit. Without this presumption, the author or other rightsholder has to provide proof that they own the copyright and of other facts such as author and date of publication.

Note that you can pay an extra fee to file for expedited registration in anticipation of bringing a lawsuit and receive the registration within a week, and that you can still bring a lawsuit even if you don’t register your work within the time frames described above; you just may not be eligible for the additional remedies.

Make Sure Your Publisher Registers Your Book

Before Signing a Contract

Every trade publisher and university press contract should have a clause that the publisher is responsible for registering the copyright in the author’s name within three months of publication. If your publisher does not have this in their standard contract, insist they add it. For sample language, see the Guild’s model trade book contract.

Two Months After Publication

We recommend following up with your publisher in the second month after publication to make sure they have registered your work. Don’t wait until after the three-month period in the contract has expired. As described above, you lose the right to statutory damages and the ability to have attorneys’ fees paid by the defendant if your work is not registered within three months of publication or before the infringement. Since you never know when your books will be pirated, it is best to make sure the work is registered within the three-month period.

Make sure the publisher sends you a copy of the registration certificate or provides your name and contact in the application so that you receive the certificate directly from the Copyright Office.

Six Months After Application

After six months, make sure the registration shows up in the Copyright Office’s online database.

Register Your Manuscript as a Backup

Following the news of the Anthropic settlement, many authors recently discovered that their publishers never registered their books. In some cases, this is a clear, actionable breach of the contract, but in other cases, the contract did not include a firm obligation that the publisher had to register the work.

There are many reasons why publishers that were obligated to register did not. For instance, we have discovered that some books that normally would have been registered were not due to lack of onsite staff during the early years of the pandemic. We have also learned of instances where the publisher filed the application but failed to send in the required deposit copies or respond to requests for further information. We expect that publishers (as well as authors) will take heed of the importance of timely registration going forward and ensure there is sufficient staffing on registration, even during times of emergency.

In all events, if the work was not registered, it means that the titles are not included in the Anthropic lawsuit. We cannot let that happen again.

To avoid the draconian results of not having a timely registration, authors can register their unpublished manuscripts on their own. We highly recommend you do so. Although the Copyright Office has a general rule that there cannot be more than one registration per work, there is an exception: An unpublished work can be registered; then, once published, the published version can also be registered.

Filing Your Own Registration

If you wish to register your unpublished manuscript, or if your publisher has not or will not register your published work, you should do so yourself.

Registration is easy and relatively inexpensive. You can register online at the Copyright Office website, and the office’s Copyright Registration Toolkit covers the basics of copyright and walks creators through the registration process. Download the Copyright Registration Toolkit here (pdf).

Get Help with Copyright Registration

The Guild’s legal team can advise and assist members on every aspect of copyright registration. Regular and associate members of the Authors Guild can submit a legal request here.

The third-party service RightsClick has a quick and easy tool for registration with a discount for Guild members.

For additional background on registration and its importance, see the Guild’s copyright registration page.