Copyright InfringmentFirst ElementExistence
a Valid Copyright
Initiating a criminal prosecution under 17 U.S.C. § 506(a) requires
proof that the defendant infringed a valid copyright. There are several
to the proof of this element. First, the government must be prepared to
the validity of the copyright, which may be established by demonstrating
formal requisites of copyright registration have been satisfied. Although
registration of a copyrighted work is not a prerequisite to obtaining
protection, see 17 U.S.C. § 102(a), it is, nevertheless, in
instances, a jurisdictional prerequisite to institution of any action for
infringement, including criminal actions. See 17 U.S.C. § 411;
United States v. Backer, 134 F.2d 533, 535 (2d Cir. 1943).|
Registration of a copyright can ordinarily be proven by obtaining a
certificate of registration from the Register of Copyrights. A certificate
registration "made before or within five years after the first publication
work shall constitute prima facie evidence of the validity of the copyright.
. ." 17 U.S.C. § 410(c); see also United States v.
Taxe, 540 F.2d 961, 966 (9th Cir.), cert. denied, 429 U.S. 1040
(1976)(in criminal case, certificate of registration provided prima facie
of date of fixation). If the defendant contests the validity of a
is necessary to make an independent evidentiary showing that a copyright is
valid. This would involve showing that the copyright was not obtained by
and the registration certificate is genuine.
PRACTICE TIP: At an early stage, investigators or prosecutors should
obtain a valid certificate of registration for works that may have been
to infringement. The victim of the offense, victim's counsel, or trade
associations representing the victim's industry can often assist in
certificate of registration, or even in obtaining registration after an
infringement has occurred.
[cited in Criminal Resource Manual 1845; USAM 9-71.001]