US Copyright- Serious Backlog

[Neil Sharpe]

If you're thinking of copyrighting your songs with the US Copyright office, be prepared to wait. Or be prepared to pay a "special handling fee" that's more than 15 times the normal fee.

Why?

The Washington Post reports that the US Copyright Office is experiencing a "serious logjam" which has tripled the normal processing times. This includes both print and online applications. Here's a link to the article.
http://www.washingtonpost.com/wp-dyn...l?hpid=topnews

[NissanVintageSax]

There wouldn't be such a "logjam" if they went back to copyrighting actual products, productions, prints, and work, instead of the idea behind something.

[Bill Mecca]

Geez, copyright attaches as soon as something is produced, all you are doing with the government is registering the copyright. so it takes 18 months instead of the usual 6, big deal.

[Budget Explosion]

That's right Bill! Unless, you are involved in litigation, it's unlikely that you would need your copyright to be registered...but, if some scumbag Russian MP3 download site is selling your music unlawfully, they won't take down your tracks unless you can provide them with a copy of your copyright registration.

[Bill Mecca]

True, but how long will that take to work thru the courts? 12-18-24 months or more? really a non-issue, heck if you copyright something do you not keep a copy of the application? I know I do.

[Neil Sharpe]

Notwithstanding the Copyright Office's position and supporting caselaw, can one can argue that in practical terms, a copy of the application may only show that you applied, not that copyright has been actually granted? What's to stop a defendant from making the same claim -in order to stall for time- (although electronic applications should be easier to date)?

If the copyright has been granted, with the registration certificate, you may be able -subject to the particular jurisdiction- to apply for immediate injunctive relief.

Failing that, it's not unreasonable to suggest that by the time the court hears the matter, and/or by the time the actual copyright has been granted, the defendant may have reaped the practical benefits and be gone.

And yes, a judgment can still be obtained against the defendant, but if the defendant is a corporation, then trying to ascertain the jurisdiction in which the defendant was incorporated, and the location of the assets, bank accounts, etc., in order to obtain appropriate relief could turn into a long, and costly process.

If any US intellectual property lawyers are members of the Forum, it would be interesting to hear their opinions.

[Bill Mecca]

Copyright does not have to be granted, it exists upon creation. The office only registers.

If you find yourself in this situation and you go into this without an experienced IP attorney you are a fool. Your attorney will do his/her best to protect your rights, you just need to provide all the documentation you can. Since the backlog is now publicly acknowledged the court will consider that as well. But get an attorney and not your cousin who only does real estate closings and wills, get and experienced IP attorney.

[gary]

LOL. I think it would behoove some to read the copyright laws or an excellent summarisation of them rather than relying on hearsay or what we think we remember. Bill's right on track.

[Neil Sharpe]

Bill certainly is right that copyright exists on "creation", and I apologize for my post that inadvertently was misleading.

http://www.copyright.gov/title17/92chap1.html

A practical difficulty that can develop -as reviewed in the Washington Post article- is readily establishing, or proving, the date of that "creation", especially when one is concerned that another also might claim "creation", and the copyright office is backed up to this extent.

In such as scenario, will a Court turn to the Copyright Office to corroborate a plaintiff's claim as indicated by the date the form was submitted to the Copyright Office, e.g. the date of mailing, and what is the practical effect if the Copyright Office is unable to readily provide the documentation due to the backlog?

An excellent discussion of the general issues can be found in "The Business of Music" by M. William Krasilovsky, Sidney Shemel, John M Gross, and Jonathan Feinstein

http://www.amazon.com/This-Business-.../dp/0823077233

[Bill Mecca]

I believe most of the responsiblity falls on the shoulders of the parties (the court evaluates the evidence, it does not collect it) during the discovery period which can take a long time depending upon the case. Lawyers can also ask for extensions (i.e. more time because of situations that are not under their control, like a government backlog) which is why I mentioned making a copy of the application, this will at least give the party some documentation that will lay a credible foundation with the court that there is a papertrail. This, as I said, falls on the shoulders of the parties and their attorneys.

I will also make the point that it takes a while for things to make their way through the system. I had lunch with a rather high powered attorney yesterday who told me he just settled an automobile claim that was filed in 2001. So an 18 month backlog for one piece of evidence, albiet an important one, doesn't seem all that long.

[gary]

...which is why I mentioned making a copy of the application, this will at least give the party some documentation that will lay a credible foundation with the court that there is a papertrail.

caveat: in this case, it's best to have that copy notarised and time/dated at the time of its completion.