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Registration of Copyright

Last Updated - May 20, 2011

We once did note that the 9th Circuit (California, Oregon, etc) was the only circuit that does allow court cases where a copyright registration has been filed but the registration has not been received. However, in Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 2010, the Supreme Court flatly stated that "the Copyright Act (Act) requires copyright holders to register their works before suing for copyright infringement" [page 1241].
While Reed Elsevier, Inc. v. Muchnick dealt with juridiction issues and copyright registration, the Supreme Court did mention the registration requirements more than once:

This case concerns "the requirements of section 411" to which § 501(b) refers. Section 411(a) provides, inter alia and with certain exceptions, that "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."[1] This provision is part of [page 1242] the Act's remedial scheme. It establishes a condition—copyright registration—that plaintiffs ordinarily must satisfy before filing an infringement claim and invoking the Act's remedial provisions. We address whether § 411(a) also deprives federal courts of subject-matter jurisdiction to adjudicate infringement claims involving unregistered works.

No where does the Supreme Court make mention of "registration" and having "filed for registration", as does the 9th Circuit. One Stephen Zralek, who posted an analysis of Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612 (9th Cir. 2010) on http://theexpressivelaw.blogspot.com/2010/03/supreme-court-issues-disappointing.html, disagrees. According to him,

The Cosmetic Court issued a thoughtful decision that concluded "registration" under 411(a) is accomplished upon mere "receipt by the Copyright Office of a complete application." In so holding, the Ninth Circuit adopted what many courts refer to as the "application" approach, rather than the "registration" approach.

What Stephen Zralek did not say was that the "many courts" also reject the "application approach". His opinion that we should look for the Cosmetic Ideas opinion to be the "new road map for courts across the country" remains to be seen. The 9th Circuit Court of Appeals tends to come to a decision and then creatively restructure the application of the law to fit the decision. This approach is bassackwards from the manner in which the other cuicuits decide their cases.

When Congress last updated copyright laws Congress included a provision that automatically granted copyright to works when created. A lot of people have wrongly assumed this change gives them all sots of powers and control over what they have created. There are conditions and exclusions.

The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Registration affords a higher level of protection.

The US Copyright Office says:

"If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner."

Also, the mere fact someone "creates" a web page, for example, does not mean the content is protected. Copyrights protect “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works, not just routine comments, listings, contents, etc. Remember the word "creative" applies. Telling someone how to get to the corner market lacks any creativity unless the trip requires a pogo stick..

The Copyright Act. 17 U.S.C. § 411(a) requires that ''no action for copyright infringement my be brought until the work that is the subject of such action has first been registered in the Copyright Office, or at least an attempt to register has been made and refused by the Copyright Office.'' 3 Nimmer §12.08, at 12-132.21. If the copyright registration is denied the party can still go into federal court on a claim of copyright infringement but the heavy burden of proof of copyrightability is one the party claiming copyrightability which no one that we can find has ever overcome.

To establish copyright infringement, Defendant must show two elements: (1) that it owns a valid copyright; and (2) that the defendant copied original elements of the work. Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir. 1986). A cause of action for infringement cannot be enforced until the creator of a work actually registers the copyright in accordance with the requirements of the Copyright Act. 17 U.S.C. § 411(a)(2004).

This means while someone can interfere with an eBay auction without a federal registration, before they can sue or otherwise plead copyright infringement in a federal court action they must actually have a registered copyright or have had one refused. Why anyone would sue for copyright infringement if their application was denied is beyond us. A number of courts have dismissed copyright infringement suits because the plaintiff did not have a valid copyright registration when the suit was filed.

Here are some short outlines of court cases about Registraion:

Section 411 of the Copyright Act states in part:

[N]o action infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.

Source: http://pub.bna.com/ctlr/4027.htm

17 U.S.C.A. §411(a) (Cum. Supp. 2002). Case law interpreting section 411 has made it clear that copyright registration is a jurisdictional prerequisite. Olan Mills, Inc, v. Linn Photo Co., 23 F.3d 1345, 1349 (8th Cir. 1994) (section 411 of Copyright Act requires registration in order to bring suit for infringement).

See also Murray Hill Publications, Inc. v. ABC Communications, Inc., 264 F.3d 622, 630 & n. 1 (6th Cir. 2001) (registration requirements under section 411 are jurisdictional prerequisites to right of holder to enforce copyright in federal court);

Morris v. Business Concepts, Inc., 259 F.3d 65, 68 (2nd Cir. 2001) (proper registration is prerequisite to action for copyright infringement); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285 (11th Cir. 2000) (registration requirement under section 411 is jurisdictional prerequisite to infringement suit);

Dodd v. Fort Smith Special Sch. Dist. No. 100, 666 F.Supp. 1278, 1282 (W.D. Ark. 1987) (no subject-matter jurisdiction under Copyright Act when copyright owners did not register copyright prior to initiating infringement suit in federal court);

Prouix v. Hennepin Tech. Ctrs. Dist. No. 287, No. 4-79-637, 1981 U.S. Dist. LEXIS 17634 (D. Minn. Dec. 7, 1981) (section 411 requirements are jurisdictional; federal court cannot hear copyright infringement claim unless such prerequisites met).

Further, the copyright actions to which the section 411 jurisdictional registration requirements apply "extend to all copyright infringement actions, including counterclaims, even if the only relief sought is an injunction.''1 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §7.16[B][1][a], at 7-156.1 to 7-157s (2002).

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