The author of the work automatically receives a copyright once it is “fixed in a tangible medium”.  Registration with the Copyright Office is not required to create or maintain copyright, unless the owner institutes an infringement suit.  However, registering in advance bestows certain advantages if the work is infringed. For example, registration in advance entitles the author to pre-established damages and attorney’s fees.


An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[1]Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”[2]  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).

 


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