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Wednesday, January 9, 2013

Copyright Infringement & Pending Applications: What You Need to Know


By: Peter J. Lamont, Esq.
Copyright protection is a critical protection that most successful businesses avail themselves of.  However, the intricacies of copyright protection are not always easy to understand. One confusing element of copyright law involves the issue of a pending registration and its impact on a copyright infringement lawsuit.   In other words, can a party maintain a copyright infringement claim when the copyright application is still pending?  
According to New Jersey District Court Judge, William Martini, a copyright infringement suit cannot be brought without an existing copyright registration. A pending application will not suffice.  
The Judge issued his ruling on January 4th in North Jersey Media Group v. Sasson. The case which was filed by North Jersey Media Group, the owner of The Record, sought damages and injunctive relief against a former reporter who allegedly infringed on its copyrights in an article and three photographs.
In his ruling, the Judge discussed the split among courts over what rule should govern infringement actions: the "application approach," under which a pending copyright application provides a basis for suit, or the "registration approach," under which a certificate of registration from the U.S. Copyright Office is a prerequisite.  He ultimately reasoned that the “registration approach” is the controlling approach and dismissed without prejudice the three infringement counts relating to the defendant. 
The Judge stated that North Jersey Media cannot maintain such an action against the defendant until it holds a certificate of copyright registration.
HOW DOES THIS RULING AFFECT YOU?
Having a pending copyright application does not confer upon you or your business the right to maintain a suit against the alleged infringer.  I have had discussions with many business leaders who believe that the will be permitted to sue for damages just because their application is “in progress” or pending.  
If the information, images or photos that you are seeking to protect are important to you and your business, make sure that you have properly completed and filed your copyright application and have been approved by the United States Copyright Office. If the materials are valuable in a monetary sense, I recommend filing your application and receiving approval before, or concurrently with, their release.  
For more information on copyright laws, please feel free to contact me at plamont@peterlamontesq.com
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