11 July 2003

I'm afraid that last year's awful decision in Morris v. Business Concepts, Inc. has begun to bear fruit. One of the ordinarily more savvy judges in the Northern District of Illinois has just followed the reasoning in Morris and thrown out a copyright infringement suit on the ground that registration of the compilation copyright in the magazine is not sufficient registration to allow an individual whose work appeared in that magazine, but was not separately registered, to sue. (Registration is a prerequisite to suit, although not a prerequisite to all means of enforcing or protecting a copyright.)

The real problem here is that kicking the matter completely out of court is not the correct result. Sure, it helps clear the judge's docket. However, as registration is not a prerequisite to holding the copyright, the better approach would be to dismiss the matter without prejudice and allow the plaintiff the opportunity to obtain the registration. This is a curable defect that is not actually related to the copyright infringement or the cause of action. Once the registration has been proven up, it forms no part of actually proving infringement. Instead, it is a gatekeeping device. I also disagree with the substance of this burgeoning line of cases, which essentially requires multiple registrations for a single piece to ensure its protection and calls into question the validity of the Copyright Office's own procedure for group registration. That is an argument for another time.

All of that said, it is becoming more and more essential for authors to police their own copyrights and registrations. Given that one of the major purposes of the 1976 rewrite of the Copyright Act was to reduce the number and prevalence of formalisms acting as a barrier between creators and protection of their rights, these decisions seem rather unfortunate.