Copyright Law - Eleventh Circuit: Foreign Works and U.S. Copyright Infringement - Don't Cheap Out - REGISTER!

Music, Publication, Publication on the Internet, U.S. Publication, Foreign Publication, Copyright Registration, Foreign Works, Registration of Foreign Works, Motion for Summary Judgment

Kernel Records Oy v. Mosley, 694 F.3d 1294 (11^th Cir. September 14, 2012).  Kernel filed a copyright infringement action over a musical work on a Sound Interface Device (SID) that is playable on a Commodore 64 computer or with emulator software.  Plaintiff alleged that the SID was a “foreign work” and thus exempt from the requirement of registration prior to bringing an action in federal court.  The district court granted summary judgment against Kernel, finding undisputed testimony that the SID had been published online and thus a “U.S. work” subject to registration with the U.S. Copyright Office prior to filing suit.  The Eleventh Circuit reviewed the record and found the testimony to raise disputed facts with respect to the method of initial publication and whether such initial publication was only in Australia as claimed by the Plaintiff.   Accordingly, the Eleventh Circuit would have reversed the district court’s ruling as error, except that it found an alternative ground for affirming the district court.  The Eleventh Circuit, in a detailed opinion analyzing what various provisions of the Copyright Act envisioned in determining what works are “U.S. works” for copyright purposes, found that Kernel had failed to meet its burden of showing the foreign publication.  Having failed to meet this burden, its case was “doomed” and should not be given an additional opportunity to gather evidence.  This was so even though Kernel had belatedly registered the work with the Copyright Office after the district court had indicated that it would grant summary judgment, but before it had actually done so.  This is an important case to read for anyone dealing with the question of a work that was published for the first time online since such publication might render an otherwise foreign work a “U.S. Work” for purposes of the Copyright Act.  Practice tip:  even if a plaintiff believes that a work is a foreign work not required to be registered with the Copyright Office, pre-litigation registration would moot many of the issues that had to be litigated in this case and would have saved the plaintiff’s case from failure, at least on this ground.

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