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Registration of Copyright Denied

Last Updated - March 20, 2010

The Copyright Office's determination that a work is not copyrightable does not bar the person from a court action for copyright infringement. In order to sue for copyright infringement, a party must either (1) have obtained a registration of the copyright from the Register of Copyrights in the Library of Congress or (2) have applied for a registration and had the registration refused by the Register. 17 U.S.C. 411(a). . Certificates of copyright registration provide prima facie evidence that copyrights are valid.

The Copyright Act also permits the Register of Copyrights to intervene in an infringement action when registration has been refused. And it usually does.

The statute permits a party whose application was denied to sue for copyright infringement. In a regular copyright infringement case where the work has been registered, the registration is considered proof of copyrightability and it is up to the alleged infringer to present evidence of copyright invalidity. When the registration has been refused, the burden of proof falls to the party claiming copyright infringement by a "preponderance of the evidence", a difficult standard..

No one has proprietary rights in a work until either the court or the Registry of Copyrights so indicates. Therefor, there can be no infringement before registration or before a court states the work should have been copyrighted.

We have not found a single law suit where the copyright was refused and the person won the claim for infringemnt.

In Paul Morelli Design, Inc. v. Tiffany and Co., 200 F. Supp. 2d 482 - Dist. Court, ED Pennsylvania 2002, Morelli had registrations of his jewelry refused. He sued claiming his original designs of seventeen rings, bracelets, earrings and pendants were copied by defendant Tiffany and Company and marketed as Tiffany's Etoile Collection. The jury found that none of the Morelli designs was copyrightable.

In Bateman v. Mnemonics, Inc., 79 F. 3d 1532 - Court of Appeals, 11th Circuit 1996, Plaintiffs Bateman and Fricker consented to a dismissal of Count III after the United States Register of Copyrights refused registration of the PAL (programmable array logic) listings on the ground that PAL listings are not copyrightable subject matter.

In Brandir Intern., Inc. v. Cascade Pacific Lumber Co., 834 F. 2d 1142 - Court of Appeals, 2nd Circuit 1987, Brandir was refused a copyright on its artistic bicycle rack. The Copyright Office refused registration by letter, stating that the RIBBON Rack did not contain any element that was "capable of independent existence as a copyrightable pictorial, graphic or sculptural work apart from the shape of the useful article." The court agreed and stated:

While the RIBBON Rack may be worthy of admiration for its aesthetic qualities alone, it remains nonetheless the product of industrial design. Form and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures as aesthetic choices.

In DBC of New York, Inc. v. Merit Diamond Corp., 768 F. Supp. 414 - Dist. Court, SD New York 1991, DBC tried to copyright its Marquise-Trillion rings in July 1990. DBC filed applications to register the designs and these applications were refused registration by the Copyright Office. The court found that the individual elements of DBC's designs, such as the marquise stones, the trillions and the knife-edged shank, were each separately well-known in the jewelry trade before DBC's creation of the rings and that the two rings were, on the whole, not exceptional, original, or unique.

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