Re: Artists, Museums & Copyright??

Stephen Fishman wrote:

> You can't confirm this at the LOC. The Copyright
> Office has on file thousands of NIEs, but these
> represent only a tiny fraction of all the foreign
> works that were restored.

Thanks to Stephen and others for confirming the limited usefulness of information in the LOC's database. Knowing if an NIE's was filed with the copyright office is still relevant for several purposes. First, if an NIE was not filed within the copyright office, an NIE still must be filed as against a reliance party (see definition in 104A) in order to pursue infringement action. Second, the remedies are quite limited as against reliance parties (my read of 104A is that no remedies are available for any prior infringements and for 12 months after receipt of the NIE. My guess is that the majority owners of restored copyrights did not file an NIE, which requires them to serve actual notice on the reliance party. A musuem who has continuously used a work of art is likely to be considered a reliance party, which therefore limits their damages for prior infringements (assuming an NIE was not originally filed with the copyright office).

> Registration is not required for copyright protection
> for published or unpublished work. It's needed only to
> file a copyright infringement lawsuit--and only if the
> copyright owner is American.

Focusing on U.S. copyright owners/authors, registration is still a vital component in claims management. Without registration, attorneys' fees and statuory penalties are not available for infringement actions, leaving actual damages as the remedy. Proving actual damages (especially where the defendant has no profits) can be very difficult, and it is often the result that legal fees will exceed actual damages absent mass infringment. Finally, where issues of public domain, publication, and ownership are in doubt, the lack of a registration can be a strong indicator of the merit of success, since the plaintiff is in the position of bearing the burden of proof of these issues. I've handled many infringement actions where the ability to secure a registration (and the absence of one in hand) severely limited the other party's ability to resolve the case (absent substantial costs or risks). Likewise, the presence of a registration often disposed of any doubt come settlement time. Amusingly enough, I just recently finished disposing of a case where a party with a registration in hand was forced to abandon their claim, since their registration included misleading and false information, which doomed their copyright. Registrations, or the lack thereof, are powerful tools in any dispute.

Dave Green
Senior Corporate Counsel, Corbis Received on Fri Sep 27 2002 - 23:24:55 GMT