Photo Attorney

Jan 25, 2007

Warning - Website Provides Misleading Info on Copyright Registration

The Internet can be a wonderful source of information or it can lead you down a path of destruction. Consider this one example of propaganda - blog.myfreecopyright.com. It states here that "in the United States and most other countries you are unable to sue for Copyright infringement unless you have publicly registered your Copyright. My Free Copyright provides a third party date registration service and satisfies this legal requirement." (Emphasis added). But relying on this information will get your copyright infringement case dismissed.

To enforce your rights in a U.S. federal court for infringement claims, you must first register your copyright with the U.S. Copyright Office - not with a third party service - before you bring suit in federal court. It doesn't matter when the infringement is committed or the registration is completed, you still must register before filing suit or your case will be dismissed. This happened to Glynn Wilson when he sued Kitty Kelley (see my March 26, 2005, blog) and recently to Angela Brooks-Ngwenya in her 7th Circuit case against Thompson, 2006 WL 2972691. Here are excerpts from the Court's Opinion in that case:

Angela Brooks-Ngwenya contends that, while working for the Indianapolis Public Schools, she devised a set of educational materials for use with underachieving middle-school students. According to her complaint . . . , the school system . . . copied them without permission or compensation. The complaint was filed in state court and removed under 28 U.S.C. 1441 because the copyright claim arises under federal law. The district court dismissed the copyright claim with prejudice after Brooks-Ngwenya conceded that she had not registered her work with the Copyright Office. . . .

Registration is a condition to copyright-infringement litigation. "No action for the infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title." 17 U.S.C. 411(a). Although Brooks-Ngwenya asserts that she failed to register because she did not understand the necessity of that step, and then because she "was distracted from following through" because of "interruptions coming from E staff members", that is irrelevant. The statute makes registration or preregistration necessary. That's all there is to it. Registration is not complex (it is no harder that filing a lawsuit), and distractions must be overcome if authors want to litigate.

Brooks-Ngwenya tells us that she registered the work on May 19, 2006, while her appeal was pending. That is too late to save this litigation. A rule in the form "no action shall be instituted until . . ." means that the condition must be fulfilled before the litigation begins. Satisfaction of the condition while the suit is pending does not avoid the need to start anew. . . .

Failure to satisfy a condition to litigation does not imply, however, that the plaintiff loses outright. A suit that is premature because a condition to litigation remains unsatisfied must be dismissed without prejudice. . . . If the condition can be satisfied while time remains in the statute of limitations, then a new suit may be filed and resolved on the merits.

MyFreeCopyright.com uses the terms "registration" and "proof" throughout its web pages so that some may think that registering with MyFreeCopyright satifies the registration requirement according U.S. Copyright Law. It does not. MyFreeCopyright instead provides a service to prove the existence of your copyright on a certain date. That rarely is an issue in copyright cases especially for photography and certainly does not meet the U.S. Copyright Office registration requirement to file suit.

Don't be mislead. Consider your sources and do your homework so that you can to protect your work.

p.s. Thanks to Howard Kier for the alert on MyFreeCopyright.com blog.

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