Because the United States is one of the few jurisdictions where a copyrighted work MUST be registered before it will be entitled to any protection, the 9th Circuit Court of Appeals ruled on June 11, 2008, that Section 412(2) bars an award of infringement for any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work (Derek Andrew, Inc. v. Poof Apparel Corporation (9th Cir. May June11, 2008) (No. 07-35048). This is the first time that the Ninth Circuit has addressed Section 412 in the context of post-registration infringement.

Plaintiff originally sued Poof for copyright infringement and obtained an award of $15,000 for copyright infringement and nearly $300,000 in attorneys fees. Poof Appealed. The Ninth Circuit reversed, holding that the purposes of the registration requirement of the statute is (1) “to provide copyright owners with an incentive to register their copyrights promptly; and (2) to “encourage potential infringers to check the Copyright Office’s database.”

The twist in this particular case is that Poof continued to infringe plaintiff’s copyrights even after plaintiff registered his copyright.

Moral of the story: if you want to use someone else’s content, wait approximately three months after publication to make sure they haven’t registered, then feel free to use it. Whenever possible, target small artists and authors who are unlikely to have registered copyright. You may ultimately have to pay some damages, but you won’t need to worry about those pesky attorneys’ fees and statutory damages.

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