January 02, 2013

Copyright Registration Does Not Equate to Copyright Infringement Liability Always

Any individual or business that wishes to protect its original work of authorship would be well served to pursue a copyright registration with the United States Copyright Office.  Registering copyright prior to an infringement or within three months of publication of the particular copyright does entitle the copyright owner and claimant to statutory damages as well as the potential for recovery of attorney’s fees.   In addition, registering a copyright before or within five years of publication of the particular work affords the copyright owner the presumption of validity of the copyright and the facts listed within the registration certificate.  Given the low registration fee associated with a copyright registration filing, it is typically advisable to pursue copyright registration.
 
However, just because someone owns a copyright registration does not mean that another’s use of something allegedly substantially similar will lead to copyright infringement liability.  The copyright claimant still must establish that the work listed in its copyright registration qualifies for copyright protection.  In the event it does not, then the copyright registration is essentially invalid and the copyright claimant may not rely upon any exclusive rights that are typically afforded to an owner of a copyrightable work.  Put another way, just because one may own a copyright registration does not mean that, at the end of the day, he or she actually is the owner of a protectable copyright. 

Oftentimes, the issue of whether or not a particular work is subject to copyright protection arises in the copyright infringement context.  Whether the sending of a cease and desist letter or the actual litigating of a copyright infringement case occurs, it is incumbent upon the copyright owner and claimant to establish its burden of proof that it, indeed, does own a copyright in the particular work.  Failure to do so will result in failure in a copyright infringement lawsuit.  A court may ultimately find that despite the fact that a copyright registration exists, the claimed work is not entitled to protection as a copyright.  Instead, it is a failed attempt to claim ownership of copyright and results in a determination that it is mere ownership of unintellectual property

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