Re: Registering Copyright in a web site

On Tue, 29 Oct 1996 ArborLaw[_at_]aol.com wrote:
>
> Ultimately, I don't know of any anecdotal evidence or case law where
> the filing of a TX resulted in a problem or in the inability to enforce
> claims going to the graphical or audio elements of a computer program.
> Anyone else?

I've never specifically investigated the issue, but the only case that springs to mind is Jefferson Airplane v. Berkeley Systems. Berkeley Systems is best known for its "After Dark" screen-saver that features winged flying toasters. Jefferson Airplane's 1973 album "Thirty Seconds Over Winterland" featured winged flying toasters, and were probably the inspiration for Berkeley Systems' screen-saver. In the infringement action, Berkeley Systems successfully moved for dismissal on the ground that Jefferson Airplane had not registered the copyright prior to bringing suit as required under 17 USC 411.

Jefferson Airplane relied on the fact that the Thirty Seconds Over Winterland album had been registered as a "Class N" work. The Class N registration is apparently the predecessor to today's Form SR.

The court found that a Class N registration covers only the copyright in the sound recording, and not the pictorial work embodied in the cover art. In so doing, it relied on an excerpt from the Compendium of Copyright Office Examination Practices and a declaration by Register Peters that a Class N registration was limited to registration of the sound recording. Somewhat surprisingly, the court also relied on a Copyright Office circular that explained the various forms of registration.

My recollection of the opinion is that it sounded like the court would have been willing to rest its judgment on this alone, but that the plaintiff had also filled out the form to indicate that only the sound recording was expected to be covered by the registration.

One response, of course, is to register the pictorial work even after dismissal and then reinstate the suit. In such a case, though, the registration benefits (statutory damages and attorney's fees) are unavailable. To the best of my knowledge, though, Jefferson Airplane dropped the suit after this. (My own belief is that they were just ticked off when Berkeley Systems claimed copyright in the flying toasters motif to halt a competing Bloom County screen saver that featured Opus the Penguin shooting down flying toasters.)

I think this is distinguishable from Bob Cumbow's original question though: in Bob's case, the Copyright Office practice is to extend registration to all copyrightable aspects of the registered work, per the statements from the Copyright Office, and a statement to that effect in the Form TX completion should also make that clear.

--
Terrence J. Carroll 
Attorney at Law                                      ph: 415/843-5090
Cooley Godward LLP                                  fax: 415/857-0663
Five Palo Alto Square            email (office): carrolltj[_at_]cooley.com
Palo Alto, CA 94306-2155         email (personal):    carroll[_at_]tjc.com