Re: Copyright claim after application but before issuance?

At 2:00 PM -0400 10/24/05, Lalpdx1[_at_]aol.com wrote:
>I have always understood that registration was
>an absolute prerequisite for copyright
>infringement claims by US authors in US courts.
>A colleague has suggested that there is a trend
>away from this requirement, and that it might be
>permissible to file an infringement claim after
>filing an application but before issuance of a
>registration. Does anyone agree or know of any
>authority supporting this? Many thanks.

I'm not sure which way the trend is running, but most recently, in Mays & Associates Inc. v. Euler, No. 05-437 (D.Md., May 18, 2005), the court held that it did not have subject matter jurisdiction over an action for copyright infringement where the plaintiff filed an application for copyright registration, but the Copyright Office had not acted on the
application. The Court held that §411(a) of the Copyright Act, "when read to give the words their ordinary, contemporary, and common meaning, clearly evidences Congress' intent to require something more than application for a copyright prior to filing suit." That creates a 4th Circuit split, with Iconbazaar, L.L.C. v. America Online, Inc., 308 F.Supp.2d 630 (M.D.N.C., 2004), and Secure Servs. Tech., Inc. v. Time & Space Processing, Inc., 722 F.Supp. 1354 (E.D.Va., 1989), holding that the registration requirement is satisfied by the filing of an application.

I wondered as I read it why an issue so basic hasn't been settled. It occurs to me that the issue is probably always moot by the time it gets to the Court of Appeals. The registration relates back to the date of the application, so the only thing you lose is injunctive relief between the date of the application and the date of the grant or denial (note that a denial also satisfies the jurisdictional requirement). Received on Wed Oct 26 2005 - 00:25:55 GMT