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Copyright Infringement Considerations: Proof of Registration

Posted in Copyright Law

By Nathan Geronimo

In order to establish a claim for copyright infringement, a party must establish two essential elements: (1) ownership of a valid copyright; and (2) copying of original elements of the work.  Additionally, registration of a copyright is a prerequisite for filing a claim for copyright infringementTo register a copyright, the owner of a copyright must submit to the Copyright Office an application for registration, and the registration fee.  Once the application is processed, the Copyright Office will issue a Certificate of Registration. 

What is evidence of registration for purposes of bringing an infringement claim?  There is a split in case law regarding whether one must simply apply for registration, or whether one must actually receive the certificate of registration from the Copyright Office.  In some cases, proof of application to register a copyright, plus proof of payment of the required fee will suffice.  In others, a certificate of registration may be required.  (If a copyright claim is registered within five years of the first publication of the work, the certificate of registration is also preliminary evidence of ownership of the copyright, the first element to an infringement claim.)  Despite this split in authority, there is some clarity regarding proof of registration.  A recent federal case reiterates and discusses the rule that a certificate of recordation alone will not suffice to demonstrate registration. 

In Latin American Music Co., Inc. v. Media Power Group, Inc., Latin American Music Company ("LAMCO") and Asociacion de Compositores y Editores de Musica Latinoamericana ("ACEMLA") sued Media Power Group, Inc. ("MPG") for copyright infringement.  MPG owns "Radio Isla," which is comprised of four Puerto Rican radio stations and numerous affiliates.  LAMCO’s infringement claims were based on Radio Isla’s broadcasting of segments of 21 songs for which LAMCO owns the copyrights and for which MPG did not hold licenses.  MPG broadcasted these song segments on talk-shows and news programs on Radio Isla.  The Court granted summary judgment for MPG as to twelve songs, finding, among other reasons, that LAMCO failed to produce evidence of registration as required by 17 U.S.C section 411(a).  LAMCO appealed.

For four of the songs in question, LAMCO introduced purported evidence of registration in the form of certificates of recordation with assignments of rights to the songs.  Presumably, LAMCO sought to prove ownership of the copyright as well as registration through these certificates.  However, the Court pointed out that certificates of recordation alone are not evidence of registration.  The reasoning behind this is that a certificate of recordation “merely indicates that the document attached to the certificate was recorded in the Copyright Office on a certain date."  Because any document related to a work, such as a transfer of interest in the work (as was the case here), may be recorded at the Copyright Office, a certificate of recordation does not in and of itself show that a work was actually registered.  While this distinction may seem counterintuitive (after all, it seems counterintuitive that someone would record a transfer of ownership of an unregistered copyright), it is important to observe.  The Courts will be looking for specific evidence of registration as a prerequisite to an infringement claim.  Recordation is not enough.  Registration by either proof of application for registration and payment of the fee or a certificate of registration is required.