Re: Re: Copyright claim after application but before issuance?

On 10/25/05, Terry Carroll <carroll[_at_]tjc.com> wrote:
> Last year, in Loree Rodkin Mgmt. Corp. v. Ross-Simmons, Inc, the C.D.Cal.
> found that actual registration, not mere application was a jurisdictional
> requirement. A copy of the opinion and order is at
> http://pub.bna.com/ptcj/04912.pdf .

One note, in the US if you apply for registration and the register of copyrights denies your application (finds the subject matter unregisterable), you may still sue in court, you just bear the additional burden of proving the work is original in the statutory sense.

On even further vague recollection, I believe that this is one of the reasons why some courts hold that mere application is sufficient - because if the rule were actual registration, but registration were never achieved, then the only other applicable date would be the date the register of copyrights denies registration - however, there are multiple appeal levels inside of the copyright office, so actually determining that date is not well defined. So, the courts that require actual registration, as I recall, would also require at least an initial denial of the registration for jurisdiction - and the courts that hold the other way look at this practically and realize that as long as you have applied . . . the application will either be allowed or denied at some point, meaning that you will always meet the requirement.

Personally I think the rule requiring actual registration or initial refusal to register is silly - I believe that the risk of attorneys fees if you file an invalid case is sufficient deterrence to prevent a flood of cases, and in those jurisdictions where the rule is simply that the application shall have been filed, I do not think there has been a flood of copyright cases. They are very dangerous cases on either side. My 2 (cents).

--
Mike Oliver
Bowie & Jensen, LLC
29 W. Susquehanna Ave.
Suite 600
Towson, MD 21204