Part Three: United States copyright registration or patents-where’s the catch?

This is the third article in my comparison of United States copyrights and patent protection. We have a final wrinkle for copyright registration of which businesspeople should be aware: the litigation difference between the two kinds of protection when a party contends there is unauthorized copying (infringement) of its patented works or copyrighted works.

To begin: Patents are only awarded to the first inventor of a specific subject matter. Consequently, in the United States there is patent infringement even if a third person is unaware of another’s patent or independently develops the same invention after the earlier inventor. Even in a complex and time consuming judicial proceeding for patent infringement, sufficient similarity between the invention as designated by the patent and the alleged infringers devices or methods is the overarching issue.

On the other hand, copyright registration is legitimately awarded to several persons or entities whenever they (i) independently create the same work. This is the case even if the same subject matter is developed at different points in time. Consequently for infringement under United States copyright law the person bringing the lawsuit (plaintiff) must establish e two facts: substantial similarity of the infringing work; AND (ii) access of the infringer to the infringed work.

In practice, this means that the plaintiff has two evidentiary tasks. The first is to present sufficient evidence to convince a judge or jury that the work is sufficiently similar to the work attached to a valid United States copyright registration. The plaintiff must also present sufficient evidence that the alleged infringer had an opportunity to obtain the original, or otherwise observe or reproduce the original or an exact reproduction to copy.

A word of caution here. An accused infringer investigates the status of the plaintiff’s copyright registration, because a valid registration is necessary for a copyright infringement lawsuit. Therefore, when completing the original copyright registration application there should be a great deal of caution and care. Otherwise the registration may be invalid for a variety of reasons. The most common reason is transfer of copyright ownership through a series of persons and entities without the required documentation. For example, a movie distributor in Chicago may have copyright registrations for to movies which were originally owned by a European vendor. However, the movie distributor did not keep or file copies of the original transfer documents from the European vendor.

Now a third party copies the movies and displays them in Milwaukee theaters. However, the movie distributor cannot prove that he obtained the movies’ copyright from the European vendor, and the vendor has disappeared. Because the copyright transfer is not properly documented the registration is invalid. Consequently, the unfortunate ending is that the distributor cannot prevail in an infringement lawsuit in a United States federal court.

© 2010 Adrienne B. Naumann

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