COURT CLARIFIES COPYRIGHT REGISTRATION ISSUE

            As you know, the Copyright Act requires that a valid copyright registration be obtained as a prerequisite to copyright infringement litigation. Issues have arisen as to the effect of registration by entities other than the author (or photographer).

            A United States District Court in New York has now clarified one of these issues, holding that the registration by a publisher of its magazine as a collective work is not a sufficient registration to permit the copyright owner to sue for infringement of the copyrighted article published within that magazine.

            In Morris v. Business Concepts, Inc, the plaintiff, author of a monthly column entitled "Mood News," was commissioned to write articles for publication in Allure Magazine. Morris granted the magazine exclusive first rights of publication for 90 days and then specified non-exclusive rights, while retaining all copyrights.

            The publisher obtained a Copyright Registration for each issue of the magazine as a collective work. Morris did not separately register her copyrighted articles, which turned out to be a big mistake.

            The defendant copied 24 of these copyrighted articles without permission and plaintiff sued for copyright infringement, relying upon the registration of these articles as part of the publisher's collective work registrations.

            The court dismissed the complaint on jurisdictional grounds, even though it found the defendants' conduct to be "reprehensible."

            The Court held a collective work is considered a form of compilation, the copyright to which "is independent of and does not affect or enlarge the scope, duration, ownership, or subsistence of any copyright protection in the preexisting material."

            The Court concluded from this definition that "the copyright protection afforded a compilation is distinct from that afforded to the discrete works that comprise the compilation." Accordingly, those registrations protected only the magazine issues (or content owned by the magazine), and not the independent works contained in it which are copyrighted by others.

            The Court stated that the publisher could have sued for infringement of its copyrights, or the plaintiff could have separately registered her copyrights and then sued, but she could not do what she tried to do.

            The Court noted that Morris had the foresight to contractually protect her ability to exploit her work for profit by carefully spelling out which rights were retained, but neglected to protect her ability to prevent others from infringing upon her rights.

            The morale for photographers -- half a loaf is better than nothing, but why settle for that when a little more effort brings full protection!

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