Copyright Litigation May Commence Without First Obtaining Registration

In order to commence a copyright infringement action in federal court, under 17 U.S.C. § 411(a), makes registration of a copyright a prerequisite prior to bringing an infringement suit. But in a May 2010, Court of Appeals for the Ninth Circuit case, Cosmetic Ideas, Inc. v. IAC/Interactive Corp., has held otherwise. The case was an appeal from a U.S. District Court, California Central District case in which Cosmetic Ideas, Inc. sued the Home Shopping Network for copyright infringement involving a necklace. Cosmetic Ideas submitted a copyright application for a necklace, and then sued HSN before getting an official registration from the U.S. Copyright Office.

Initially the case was dismissed for lack of subject matter jurisdiction because of the lack of a registered copyright. The Ninth Circuit court then later overturned that decision. The 9th Circuit court found that a copyright is actually considered registered once the application has been submitted and stated "that receipt by the Copyright Office of a complete application satisfies the registration requirement of § 411(a)."

Their reasoning was that Congress’s purpose for copyrights was to protect intellectual property in exactly this scenario. Cosmetic Ideas may have had to wait several months before their copyright was officially registered. And theoretically, during that time, nothing could be done to stop copyright infringers. The issue of speed of information in the post-internet world is likely to affect similar statutes. And this is probably not the last time we’ll hear about this specific case.

Green Day Copyright Infringement of Scream Art

Immediately following a Green Day concert in LA last August, local artist Dereck Seltzer began receiving calls and emails, alerting him that his ‘Scream Icon’ art was being used as the backdrop to the show. Seltzer was surprised, since he had no previous contact with the band. Scream Icon was copyrighted by Seltzer in 2003. When he approached the band, complaining that they had used the art without regard for the registered copyright, they offered him concert tickets in settlement. Green Day continues to use artwork in promotional materials and backdrops.

Seltzer filed a complaint in the Central District of Los Angeles and is suing Green Day for Copyright Infringement, and unfair competition and false designation under Section 43(a) of the Lanham Act. However, Green Day’s attorney, Don Passman claims that "Green Day received Mr. Seltzer's image from a responsible company and was unaware that there could be any copyright or other issues."

It’s hard to be too careful about usage of graphics and artwork, and it’s important to know the actual source. Although it may seem harmless, much of it is legitimately copyrighted material. Even more important to be careful when dozens of sold out stadiums will be viewing the art in question.

Sonia Sotomayor an Intellectual Property Attorney?

It turns out President Obama’s nominee to the Supreme Court was a partner at a firm that handled intellectual property litigation. In fact she ruled on an important copyright case, Tasini vs. New York Times, while she served as a federal judge for the U.S. District Court of the Southern District of New York. However, the case was later reversed by the appellate court and was then appealed again by the U.S. Supreme Court, in New York Times Co v. Tasini 533 U.S. 483 (2001). The case involved a claim of copyright infringement brought by freelance journalists against the New York Times and other news organizations (the “publishers”), when the publishers distributed articles written by the journalist to Lexis/Nexis, a legal database, without the permission of the journalist. The publishers claimed a privilege accorded collective work copyright owners by §201(c) of the Copyright Act.

At the District Court level, Sotomayor ruled in favor of the publishers, claiming that they were entitled to reproduce the articles within Lexis/Nexis under the protection of the collective work copyright. (The collective copyright entitles the copyright owner rights to the collection as whole, but not to the individual authored works which are separately copyrighted works). However, both the appellate court and the U.S. Supreme Court reversed Sotomayor’s decision ruling in favor of the freelance journalists.

The Supreme Court reasoned that as the articles appear in Lexis/Nexis, they do not appear as a collective work, rather “[w]hen the user conducts a search, each article appears as a separate item within the search result.” The Court further stated “the Database does not reproduce and distribute the article ‘as part of’ either the original edition or a ‘revision’ of that edition."