Re: comment on copyright case?

On 04/24/2000, Laurie Urquiaga <urquiagal[_at_]lawgate.byu.edu> wrote:
>
> I haven't seen any commentary about this case:
>
> > Publisher's Copyright of Magazine Issue Won't Protect Individual Authors
> >
> > Copyright registration of an entire issue of a magazine does not
> > extend protection to the individual articles within the magazine,
> > a federal court in New York ruled. The U.S. District Court for
> > the Southern District of New York found that an author's failure
> > to obtain copyright registration of her columns left her without
> > a remedy for "abject and reprehensible" copying by another
> > publisher. (IP Law Weekly -- For complete story, see
> > http://www.lawnewsnetwork.com/stories/A21143-2000Apr13.html)
>
> Although I'm just a lowly 1L, it seems to me that the summary judgment
> order was wrong in this case. Failure to register copyright prohibits
> statutory damages, but isn't the copyright owner still entitled to actual
> and consequential damages? What's the point of the 1976 change removing
> the need to register if registration is still required for protection?

The 1976 Act did not change the registration requirement. Registration is not required as a condition of copyright, but it is [and always has been] required as a condition of bringing an infringement suit. Sec. 411(a) says (with certain exceptions): "No action for 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." Works of foreign origin are exempt from the registration provision (to comply with the Berne convention), but U.S. works are not.

The failure to register does not leave the author without a remedy; as long as the statute of limitation has not expired, he or she can go and register the work and re-file suit after doing so. Statutory damages and attorneys fees will be precluded [Sec. 412], and no damages can be recovered for infringements occuring more than three years before filing; but an injunction (and actual damages and profits within the past three years) should still be available.

Under Sec. 103, the copyright in a collective work is separate from, and independent of, the copyright in the individual works contained in the collection. The publisher registered its copyright in the collective work as a whole; that was held not to be sufficient to allow the author to sue, in his or her own name, for infringement of his or her separate copyright in the individual work. These are separate copyrights, owned by different people; requiring separate registrations for them strikes me as the correct interpretation of the statute.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Tue Apr 25 2000 - 03:28:30 GMT