Discussion:
What is the name of your state?What is the name of your state? MO
Hypothetical question. Could Batlin v. Synder be applicable to unregistered artwork? i.e., If an artist posted images of their unregistered artwork (sculpture) on a website that the public has access to, could it be considered "public domain"? Would another artist then be free to copy that artist's sculpture using images that were posted on a website as reference?
Answer:
If an artist posted images of their unregistered artwork (sculpture) on a website that the public has access to, could it be considered "public domain"? No. Registration is not required for a work to be covered by copyright. A work cannot pass into the public domain without the copyrifght holder explicitly abandoning his copyright -- it can't happen accidently.
Would another artist then be free to copy that artist's sculpture using images that were posted on a website as reference? No.
However, from a practical standpoint, without a registered copyright, it can be very expensive (usually prohibitively expensive) to enforce your copyright against infringement.
Answer:
Thank you for your quick reply. This appears contrary to an answer I received from a copyright & trademark attorney (will not mention his name) who purportedly has been in practice for 22 years:
"The answer as to why register a copyright is:
(1) In order to enforce the copyright. Suit for copyright infringement is exclusively in the Federal Courts. The Federal Courts do not have jurisdiction without at least an application for registration being filed so, even though copyrights apply automatically, in order to enforce your copyright, you HAVE to apply to register it."
When I questioned this, he did not respond. Likely he knows better but registering works by authors that are lead to believe they HAVE to register (in order to receive protection) could be a very profitable venture.

No.
However, from a practical standpoint, without a registered copyright, it can be very expensive (usually prohibitively expensive) to enforce your copyright against infringement.[/quote]
Answer:
Well, the answer you received below is correct, but it is not the answer to the question you posed on this forum.
You asked if registration was required to keep a work from moving into the public domain. The answer is no, a work is automatically protected. Once upon a time, if a work was published without a copyright notice (not the same as registration) it would move into the public domain, but that's not how the law works anymore.
However, the answer you received is correct in that you must register your copyright before you can turn to the courts to enforce your copyright. There is no time limit for registration -- you could wait until you've already been infringed before registering your copyright.
However, there are several advantages to registering before infringement occurs. If you have a registered copyright and then someone infringes, you can take them to court, and you can sue for injunctive relief (restraining orders, etc.) or for damages -- and you have the choice of statutory damages (damages set by statute without a need to prove damages) or actual damages (the damages you can prove you actually suffered), usually you sue for whichever one gives you the greater recovery.
Conversly, if you wait to register until AFTER the infringement occurs, then all you can sue for is actual damages. And that's why I said that is can be prohibitively expensive to enforce your copyright without a registration -- unless you can prove that you have suffered actual economic damages, and a lot of them (at least enough to cover your legal fees), then you really can't sue unless you are willing to pay your legal fees out-of-pocket -- and they can get expensive in a hurry.
When I questioned this, he did not respond. Likely he knows better but registering works by authors that are lead to believe they HAVE to register (in order to receive protection) could be a very profitable venture. The point is, if you don't register, you are still protected -- but you may not be able to enforce your copyright. If you do register, it may be substantially easier to enforce your copyright, because of the injunctive relief and statutory damages, which allow you to potentially recover damages even if you have NO economic damages that you can prove. You may not get much, but you may get enough to at least cover your legal fees.
Answer:
I apologize for the confusion. You answered an underlying question I had, i.e., in a lawsuit involving a copyright that had not been registered, would the end result differ substantially had it been registerd in a timely fashion? (Thus, why register?). It seems contradictory at first. A copyright that is not registered is still protected yet there is no way to enforce it unless it is registered. Basically a plaintiff has only one choice of remedy and that is to register their copyright. This was not (and is not) my area of expertise so please bear with me.
Answer:
A copyright that is not registered is still protected yet there is no way to enforce it unless it is registered. That's not quite true -- what I said (or, at least, what I meant...) is that there is often no PRACTICAL way to enforce it unless it is registered prior to infringement. If you have an unregistered work that you are making a lot of money off of, and someone infringes and costs you money, then you can register and sue, and it would be worthwhile, because you have substantial, proveable actual damages.
However, since the mojority of unregistered works are of little commercial value, the PRACTICAL effect is that they are unenforceable. But LEGALLY they are still enforceable -- but who wants to pay tens of thousands in legal fees in order to collect nominal damages, unless you are really rich or really out to get someone.
Basically a plaintiff has only one choice of remedy and that is to register their copyright. I think I mentioned in another post that the underlying rationale for this apparent dichotomy has to do with notice, and the quasi-strict-liability aspects of copyright law. Copyright infringement doesn't require any "intent" to infringe, so it is similar to many strict liability laws. However, it can be quite difficult, if not impossible, to determine whether a particular work that you want to use is protected by copyright, or is in the public domain. So, you have registration -- if you register your work, then the registration, which is a public record, puts everyone "on notice" that the work is copyrighted, and therefore, you can have some pretty severe penalties (statutory damages, injunctive relief, even criminal liability in some cases) because you should have known you were infringing.
On the flip side, its not always possible to determine if a work is covered by copyright if it is not registered -- rather than make someone assume that everything is copyrighted and therefore unusable (thereby going against the original rationale of copyright, which is to advance the useful arts) or make everyone do an expensive and exhaustive search, the congress decided instead to simply make the remedies for infringement of an unregistered copyright much less onerous. Basically, if you infringe on an unregistered copyright, you are considered an "innocent" infringer, and should not be treated as harshly as one who infringes on a registered copyright, who is "on notice" that the work he is using is protected.
So, in the end, everything balances out. People who really want to protect their work are given incentives to register, and people who don't want to register are thereafter limited in their ability to "lie in wait" for someone to infringe before going after them.
I hope that explains things a little more clearly.
Answer:
Thank you for taking the time to explain things a little more clearly. So, a copyright owner/plaintiff does indeed have another remedy available to them other than registration (albeit a highly impractical one), and even then they would at least need an application for registration before the courts would hear their case.
The fact that all artwork is automatically copyrighted should be sufficient notice that it is protected but as you pointed out, without registration one would have no way of knowing whether or not the copyright is valid or if the owner has relinquished rights ect...