§ 412. — Registration as prerequisite to certain remedies for infringement.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC412]
TITLE 17--COPYRIGHTS
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION
Sec. 412. Registration as prerequisite to certain remedies for
infringement
In any action under this title, other than an action brought for a
violation of the rights of the author under section 106A(a) or an action
instituted under section 411(b), no award of statutory damages or of
attorney's fees, as provided by sections 504 and 505, shall be made
for--
(1) any infringement of copyright in an unpublished work
commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first
publication of the work and before the effective date of its
registration, unless such registration is made within three months
after the first publication of the work.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2583; Pub.
L. 101-650, title VI, Sec. 606(c)(2), Dec. 1, 1990, 104 Stat. 5131.)
Historical and Revision Notes
house report no. 94-1476
The need for section 412 arises from two basic changes the bill will
make in the present law.
(1) Copyright registration for published works, which is useful
and important to users and the public at large, would no longer be
compulsory, and should therefore be induced in some practical way.
(2) The great body of unpublished works now protected at common
law would automatically be brought under copyright and given
statutory protection. The remedies for infringement presently
available at common law should continue to apply to these works
under the statute, but they should not be given special statutory
remedies unless the owner has, by registration, made a public record
of his copyright claim.
Under the general scheme of the bill, a copyright owner whose work
has been infringed before registration would be entitled to the remedies
ordinarily available in infringement cases: an injunction on terms the
court considers fair, and his actual damages plus any applicable profits
not used as a measure of damages. However, section 412 would deny any
award of the special or ``extraordinary'' remedies of statutory damages
or attorney's fees where infringement of copyright in an unpublished
work began before registration or where, in the case of a published
work, infringement commenced after publication and before registration
(unless registration has been made within a grace period of three months
after publication). These provisions would be applicable to works of
foreign and domestic origin alike.
In providing that statutory damages and attorney's fees are not
recoverable for infringement of unpublished, unregistered works, clause
(1) of section 412 in no way narrows the remedies available under the
present law. With respect to published works, clause (2) would generally
deny an award of those two special remedies where infringement takes
place before registration. As an exception, however, the clause provides
a grace period of three months after publication during which
registration can be made without loss of remedies; full remedies could
be recovered for any infringement begun during the three months after
publication if registration is made before that period has ended. This
exception is needed to take care of newsworthy or suddenly popular works
which may be infringed almost as soon as they are published, before the
copyright owner has had a reasonable opportunity to register his claim.
Amendments
1990--Pub. L. 101-650 inserted ``an action brought for a violation
of the rights of the author under section 106A(a) or'' after ``other
than'' in introductory provisions.
Effective Date of 1990 Amendment
Amendment by Pub. L. 101-650 effective 6 months after Dec. 1, 1990,
see section 610 of Pub. L. 101-650, set out as an Effective Date note
under section 106A of this title.
Section Referred to in Other Sections
This section is referred to in sections 101, 104A of this title.
