"Copyright owner must register a work with the Copyright Office as a prerequisite to commencement of any copyright infringement litigation."

DIRECT REGISTRATION REQUIREMENT UPHELD

           As you will recall, the Copyright Act requires that a copyright owner must register a work with the Copyright Office as a prerequisite to commencement of any copyright infringement litigation. It was unclear until recently whether that registration had to be one filed by the copyright owner (i.e., the photographer) or whether a registration of a collective work (i.e., a magazine) would be sufficient to cover the works included in the magazine.

           I previously reported on the United States District Court decision in Morris v. Business Concepts, Inc. (June 2000 issue), which held that a collective work registration was insufficient.

           In a decision dated July 26, 2001, the Second Circuit Court of Appeals has, unfortunately, upheld that decision. The Court found that unless the owner of the copyright for a collective work also was the copyright owner of the constituent part of that work (i.e., a photograph or article), registration of the collective work is not sufficient for jurisdictual purposes.

           The decision was based upon a super technical reading of certain provisions of the Copyright Act and is being appealed to the full court for an on bane hearing.

           Being able to rely on the collective registration for those who did not directly register their copyrights was important if the copyright owner was relying upon recovery of statutory damages and attorneys fees. These are, of course, available only if the registration occurs within three months of first publication or prior to the infringing act.

           Prompt registration is therefore, now more important than ever.

           However, all is not lost. Under new Copyright Office regulations, you can now file group registrations of your published works for one filing fee, if they are all created in the same year, and, if publication dates are not listed, all are first published within three months of filing. This removes one more excuse not to have your work registered!

           As I continually emphasize, it takes little effort to be prepared, while the rewards can be huge.