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Writing Right: The Blog

WHY CAN'T YOU SUE FOR AN UNREGISTERED WORK?

A reader dropped that disastrous bomb on a writing forum the other day, and--as usual--the least qualified responses came from the commentators who least understand U.S. copyright law. Here's what I threw into the mix.

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Are you confused? If not, I can't understand why. I know I'd be confused if I had to rely upon several other commentators' abbreviated, misleading, or outright wrong responses to your question, which, by the way, begs for clarity. I assume what you're asking is whether or not you can sue someone for copyright infringement even though the work being compromised isn't registered with the U.S. Copyright Office. If that's the case, the answer is yes.

 

Here's what Parsons & Goltry, PLLC, experts in the field, has to say on the matter:

 

Copyright protection exists in any work that is fixed in a tangible medium of expression, even if the work is not registered with the United States Copyright Office. However, if someone tries to infringe on an unregistered copyright — copy the work, sell the work, or perform the work without permission — the unregistered copyright holder's ability to recover damages is limited.

 

In the case of an unregistered copyright, damages are limited to those which can be proven; in other words, actual damages. This means that the holder of an unregistered copyright can recover:

 

  • Any actual damages;
  • Any actual profits or money lost, or even potentially lost, and
  • Any money gained by the person who is using the work without permission.


Proving damages, then, becomes an important part of any successful legal action against copyright infringement and may require such steps as a forensic accountant's audit, a review and proof of the value of similar products recently sold or licensed, and an examination of the infringing party's bank statements and other financial records to see to what extent he or she may have benefited financially from infringement of your property.

 

So, in response to your question, you can take legal action against a person, persons, or company for infringement. Because of the nature of the proof required to prove damages, though, you would be wise to obtain legal council before taking any such action.

 

I hope this helps to clear the air and shed some light on some rather murky responses.

 

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D. J. Herda is author of the new eBook series of writing advice, About Writing Right, available at Amazon and at fine booksellers everywhere.

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