Generic Fair Use

... where pop culture meets intellectual property law

Tag: statutory damages

No Skipping Steps? The Burdens of Artistry

SCOTUS to hear case on copyright registration requirements

July 10, 2018

Copyright law is quirky. On one hand, you have a copyright the instant you fix your work in a tangible medium of expression.[1] You do not need to do anything else. Copyright protection attaches right away. Yet to actually enforce that copyright against potential infringement requires that the copyright owner take steps to register the copyrighted work with the Copyright Office.[2] That is right – a prerequisite to any lawsuit is registration. This is an added step which requires lawyers and application filing fees. The legal system always seems to be set up to make sure it gets paid first. Funny how that works.

Some states and circuits, however, have operated under a “if the application to register is on file; that is good enough” policy. The Fifth Circuit, which includes Texas, is an example of this policy.[3] Strictly speaking, the Fifth Circuit “requires only that the Copyright Office actually receive the application, deposit, and fee before a plaintiff files an infringement action.”[4] For now.

Why is this important? Well, on June 28, 2018, the United States Supreme Court granted certiorari in the case Fourth Estate Public Benefit Corp. v. Wall-Street.com, to resolve this perceived “split” amongst the circuit courts for what is required to file a copyright infringement lawsuit in the United States. This issue will be heard by SCOTUS during the next term. The result will likely impact the strategies of copyright lawyers, including me.

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Is “joke theft” tantamount to copyright infringement?

In what seems to be a rite of passage for up-and-coming comedians, Golden Globe® nominee Amy Schumer was recently accused of “joke theft” by a series of fellow comedians. All puns aside, “joke theft” can be a serious matter and allegations of the same have negatively affected the careers of many comedians, including Denis Leary, Carlos Mencia, and Dane Cook.[1] While few jokes are truly original anymore, the blatant lifting of an entire comedic performance from another often subjects the alleged thief to public shaming. In the case of a comedian with the status of Amy Schumer, that shaming can be high-profile. Many have already taken to YouTube to create comparison videos.

But is joke theft a stand-alone basis for a legal claim of copyright infringement?

Yes, yes it can be.  Please allow me to explain…

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