Minnesota Website Battle Breeds Copyright Question

May 24, 2009

Claiming a copyright and suing for copyright infringement are two different things.  As I’ve stated in my Copyright Q&A, a writer, photographer, or website creator owns a copyright in the article, picture, or online content is written, taken, or designed.

Going to court to seek money for copyright infringement, though, requires complying with copyright “registration” requirements.  Problem is, the law is unclear on whether a copyright is “registered” at the time the copyright claimant sends in the application, or at the time the copyright certification is in hand.  Last week, St. Paul-based federal judge Donovan Frank confronted that very question — in some ways a dry one that only a lawyer could love, but in other ways a highly important question given that creative content on the internet continues to proliferate.

At issue in Tri-Marketing, Inc. v. Mainstream Marketing Services, Inc. are websites that the telemarketing firms maintain.  The lawsuit is about whether one firm illegally copied the website of the other.  Judge Frank explained that the Eighth Circuit Court of Appeals (which issues decisions governing Minnesota-based federal courts) had not decided the issue.  However, he ruled that the court likely would come down on the side of the “broader approach” — the approach suggesting that as long as the registration check is in the mail, a lawsuit may be maintained.

Federal courts are split on whether Judge Frank was right.  Eventually, the issue might end up in the Supreme Court.  We’ll see.

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