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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Supreme Court

Supreme Court confirms that works must be registered before commencing copyright lawsuit

05 Tuesday Mar 2019

Posted by Kenan Farrell in Copyright, Intellectual Property, Legislation, Litigation, Supreme Court

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Fourth Estate, Ruth Bader Ginsburg, Special Handling

Screen Shot 2019-03-05 at 8.07.53 AM.png

The much-anticipated ruling for Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al. has arrived. Yesterday, Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Supreme Court, confirming that a work must be registered prior to commencing a copyright infringement lawsuit.

Held: Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.

This ruling confirms the literal reading of 17 U.S.C. §411(a), which states that “no civil action for infringement of the copyright in any United States work shall be instituted until … registration of the copyright claim has been made in accordance with this title.”

Fourth Estate, a news organization, had argued that, because “registration is not a condition of copyright protection” under 17 U.S.C. §408(a), then §411(a) should not bar a copyright claimant from enforcing that protection in court once they have applied for registration.

Now it is clear that registration must be obtained before commencing a lawsuit. This means that copyright owners must be even more diligent about filing applications for their significant works. The time spent waiting on an application to register would normally remove any option of quick, decisive action by a copyright owner against an infringer.

The best option for late applicants will be the Copyright Office’s Special Handling procedure, which allows for registration in less than a week for an additional $800 Special Handling fee.

Justice Ginsburg’s opinion acknowledged the current administrative delay of the Copyright Office, acknowledging that Congress is in the best position to protect copyright claimants, either by increasing funding to the Copyright Office or revising the language of §411(a).

True, registration processing times have increased from one to two weeks in 1956 to many months today. Delays, in large part, are the result of Copyright Office staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. Unfortunate as the current administrative lag may be, that factor does not allow this court to revise §411(a)’s congressionally composed text.

This blog will begin to monitor the real-world impact of this decision and report back periodically.

Stories from the Week that Was – 7/1/12-7/7/12

08 Sunday Jul 2012

Posted by Kenan Farrell in Copyright, Litigation, Patent, Stories from the Week that Was, Supreme Court, Tech Developments, Trademark

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Drones, Facebook, Nike, Righthaven, Yahoo

Here are the top stories I followed this week:

Supreme Court to Decide Whether Patent Bullies Can Hit and Run

Defunct copyright troll Righthaven seeks resurrection

Hold Your Flow! Yoga Sequences Not Copyrightable

Drones decimating Taliban in Pakistan

U.S. drone ‘hijackings’ raise security concerns

Charles Carreon drops lawsuit against @TheOatmeal’s Matthew Inman

Facebook Users Hijack Walmart Campaign to Exile Pitbull to Remote Island

Yahoo and Facebook settle patent lawsuit with strategic deal

“Man is a slow, sloppy and brilliant thinker; the machine is fast, accurate and stupid.”  ~William M. Kelly

Stories from the Week that Was – 6/24/12-6/30/12

01 Sunday Jul 2012

Posted by Kenan Farrell in Indiana, Litigation, Stories from the Week that Was, Supreme Court, Tech Developments, Trademark

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FTC, MySpace, Nike

Here are the top stories I followed this week:

Indiana Court Upholds Social Media Ban for Sex Offenders

USPTO seeks to intervene in publisher’s copyright infringement suit against law firm

FTC v. Myspace Part II – The Takeaways

U.S. Supreme Court to hear Nike trademark case

“As far as I’m concerned, progress peaked with frozen pizza.” -Die Hard 2, spoken by the character John McClane

Stories from the Week that Was – 6/17/12-6/23/12

24 Sunday Jun 2012

Posted by Kenan Farrell in Branding, Social Media, Southern District of Indiana, Stories from the Week that Was, Supreme Court, Tech Developments, Trademark

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BitTorrent, Drones, Google

A week spent getting caught up from vacation. I had a great time giving a seminar at the office on Tuesday, Trademark and Brand Protection for Communicators. Look out for more of those in the future. It’s also about time to start preparing for Art & Museum Law, so expect more art world news in these posts in the upcoming months. Here are the top stories I followed this week:

Google reports ‘alarming’ rise in government censorship requests

Why brands are leaning towards minimalism

More Download Cases filed in Indiana

Washington’s 5 Worst Arguments for Keeping Secrets From You

U.S. rejects requests for documents regarding targeted killings with drones

Supreme Court cops out, again, on “fleeting expletives”

Louisiana Sex Offenders Must List Status on Social Media Profile

“One machine can do the work of fifty ordinary men.  No machine can do the work of one extraordinary man.” -Elbert Hubbard, The Roycroft Dictionary and Book of Epigrams, 1923

Supreme Court to Hear Oral Arguments in Copyright Case

03 Monday Oct 2011

Posted by Kenan Farrell in Copyright, Intellectual Property, Litigation, Supreme Court

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Copyright

The Supreme Court of the United States gets back to work this week and will be hearing oral arguments on a copyright case, Golan v. Holder. [FULL SCHEDULE] Here’s the skinny on what you’ll want to know about the case going into Wednesday morning’s arguments:

GOLAN V. HOLDER

DECISION BELOW: 609 F.3d 1076

Section 514 of the Uruguay Round Agreements Act of 1994 (Section 514) did something unique in the history of American intellectual property law: It “restored” copyright protection in thousands of works that the Copyright Act had placed in the Public Domain, where they remained for years as the common property of all Americans. The Petitioners in this case are orchestra conductors, educators, performers, film archivists and motion picture distributors, who relied for years on the free availability of these works in the Public Domain, which they performed, adapted, restored and distributed without restriction. The enactment of Section 514 therefore had a dramatic effect on Petitioners’ free speech and expression rights, as well as their economic interests. Section 514 eliminated Petitioners’ right to perform, share and build upon works they had once been able to use freely.

The questions presented are:

  1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
  2. Does Section 514 violate the First Amendment of the United States Constitution?

Stay tuned to the Indiana IP&T blog for a transcript and summary of the oral arguments. Go here for links to the Merit Briefs and a long list of Amicus Briefs.

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