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Outrage! and "Special Handling" in the Copyright Office

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You’ve traveled to the ends of the Earth to present your bid to the government ministers of a foreign potentate. The machinery you propose to offer in response to His Majesty’s request-for-proposal is superior to the products of your rival bidders.

As you wait in the foyer of the palace with your competitors, you observe, to your utter shock and amazement that one of your competitors has several key slides that are, to put it bluntly, exact copies of your own slides -- photographs of the machine you manufacture, charts and diagrams explaining its use and processes, etc. All that has been changed is the company name on the slides.

"What to do? Let’s remember first that notions of copyright, routed in the West by The Digital Millennium, are more honored in the breach than the observance in many places in the East."

So you’re not going to remonstrate with His Majesty or his ministers, and, besides, relief can be very satisfying in the form of an injunction issued by a U.S. district court.

You’re going to win the bid on the merits and then hurry home to sue your infringing competitor.

Except you can’t. You never registered your copyright in your marketing and sales materials. Who, you thought, would ever steal them? And a registered copyright is a prerequisite to bringing an action for copyright infringement in a U.S. district court (Federal courts have exclusive (no state courts) jurisdiction of copyright disputes).

When you create something (called a “work”), your copyright in the work arises automatically at the instant of creation. But this instant copyright is like a dead mobile phone without a charger. Great in theory but absolutely useless without its “charger,” i.e., a U.S. Copyright Office certificate of registration.

Well, you say, I’ll proceed to register my copyright. Good idea: fill out your application, pay the $35 (online) filing fee, and wait for the Copyright Office to get back to you (4-5 months).

UNLESS, and now finally to the point: you ask the Copyright Office to accord your application “Special Handling.” The fee is an additional $760, and with Special Handling, you can be in court, as was the accuser in this case, in five business days.

The story you have just read is based on a true story. The infringer in this case was hauled before a U.S district court. It is now subject to an injunction prohibiting infringement.

You’re thinking, can’t I just put notice of copyright on my work and be protected? The answer is “no.” The familiar copyright notice is an historical artifact beloved of lawyers. But yes, as a practical matter, it will deter people who would otherwise be “innocent” infringers and it may help you make a case for “willful” infringement (and higher statutory damages), but in and of itself, it is neither necessary nor sufficient to protect your copyright.

This advisory was prepared by Nutter's Intellectual Property practice. For more information, please contact your Nutter attorney at 617-439-2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.
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