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Part 1: High court hears argument in Fourth Estate copyright case

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

On January 8, the U.S. Supreme Court heard oral argument in the important copyright infringement case of Fourth Estate Public Benefit Corporation v., LLC. We previously told readers about this dispute that will require the highest court to make a crucial interpretation of the U.S. Copyright Act.

As we described in our first blog on this topic, to file a federal action alleging copyright infringement, the copyright owner must already have registered the copyright with the U.S. Copyright Office. Specifically, the law says that "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made ..."

Circuit split

The federal Courts of Appeal are split on the meaning of "registration" in this context. Some have said that it means a copyright owner cannot start a lawsuit until the registrar has officially ruled on the registration application, either generating a certificate of registration or denying it. Court watchers call this the "registration approach."

Other appeals courts have taken the "application approach," meaning that the copyright owner may file an infringement suit as it has properly filed the application for registration.

The positions

Supporters of the application approach say that copyright owners may suffer significant acts of infringement if they must wait months for the Copyright Office to decide on an application because an infringer can share and duplicate files online and electronically. If an owner could file the suit immediately upon application, it could request a court injunction ordering that the infringing activity stop much sooner.

On the other side, registration-approach advocates assert that the plain meaning of the word "registration" means that the entire process has been completed with the registrar having ruled on the application.

In Part 2 of this post, we will share details of the spectrum of questions the justices asked the participating lawyers in oral argument.



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