The US Court of Appeals for the Fifth Circuit has ruled that statutory damages are not available unless the copyright was registered prior to the infringement. The court in Southern Credentialing Support v. Hammond Surgical Hospital LLC et al, case number 18-31160, January 9, 2020, held that even if a different type of infringement occurred after registration, that if the infringement started prior to registration, no statutory damages were available. The case can be read here.
The moral to this story is that if you want statutory damages, which can be up to $150,000 per infringement, you must register your copyright early, and at a minimum before the infringement begins.
On January 1, 2019 many famous works entered the public domain in the USA, after a 21 year drought.
Under the first Copyright Act of 1790, copyrights lasted 14 years with an option of additional 14 year renewal term. In 1909 the copyright laws changed again, with both terms doubled to 28 years, thereby allowing for up to 56 years of copyright protection. In 1976, with a new Copyright ACT, congress changed the law to a copyright term of author’s life plus 50 years, or for works made for hire, a term of 75 years from publication. In 1998, representative Sonny Bono, yes, THAT Sonny Bono, was a major force who pushed through the Copyright Term Extension Act (“CTEA”). The CTEA extended the 50 years of protection after death to 70 years, and the term for works made for hire to 95 years. One reason the law was changed, was because Disney’s Mickey Mouse character was about to enter the public domain.
So, the additional 20 years of copyright term meant that from 1999 until 2019, no published works entered the public domain. Some works that have entered the public domain are films such as The Ten Commandments, directed by Cecil B. DeMille; The Pilgrim, directed by Charlie Chaplin. Also books are entering the public domain, such as Edgar Rice Burroughs, Tarzan and the Golden Lion; Agatha Christie, The Murder on the Links. A more comprehensive list of works that entered the public domain in 2019 can be found here.
When works enter the public domain, anyone can make them available, where you can rediscover and enjoy them. Public domain works means that you can use these materials, for business, education, for research, or for creative endeavors—whether it’s translating the books, making your own versions of the films, or building new music based on old classics.
On March 4, 2019, the United States Supreme Court issued an opinion that basically changed the long-standing practice of a plaintiff needing only to apply for copyright registration prior to bringing a copyright infringement lawsuit. Justice Ginsburg, writing for a unanimous court, said the law requires a litigant to have an issued registration, or a rejected application, subject to certain limited exceptions. Prior to this ruling, many litigators only filed an application for copyright registration prior to filing a copyright infringement lawsuit. However, the Supreme Court clarified the law, and made it clear that a copyright owner must have an issued registration or a refusal to register from the Copyright Office.
There are some exceptions. Such as “preregistration” for works that are particularly vulnerable to predistribution infringement, such as movies or musical compositions. Once a work is “preregistered” the owner may bring suit.
The decision can be read here.