Initiating a criminal prosecution under 17 U.S.C. § 506(a) requires proof that the defendant infringed a valid copyright. There are several aspects to the proof of this element. First, the government must be prepared to prove the validity of the copyright, which may be established by demonstrating that the formal requisites of copyright registration have been satisfied. Although registration of a copyrighted work is not a prerequisite to obtaining copyright protection, see 17 U.S.C. § 102(a), it is, nevertheless, in most 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 of registration "made before or within five years after the first publication of the 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 proof of date of fixation). If the defendant contests the validity of a copyright, it is necessary to make an independent evidentiary showing that a copyright is valid. This would involve showing that the copyright was not obtained by fraud 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 subject to infringement. The victim of the offense, victim's counsel, or trade associations representing the victim's industry can often assist in obtaining a certificate of registration, or even in obtaining registration after an infringement has occurred.