The Registration of Copyrights for Adult Content Material
By J. D. Obenberger, Attorney at Law
© MMII J. D. Obenberger, All Rights Reserved
Written for and Published on the World Wide Web by YNOT News, January, 2002
The Comments of Marybeth Peters, US Register of Copyrights
The day after I returned to Chicago from Internext, I attended a continuing legal education seminar on the topic of Copyright held under the auspices of the Patent, Copyright, and Trademark Committee of the Chicago Bar Association.
We who attended the seminar were fortunate to have Ms. Marybeth Peters, the Register of Copyrights of the United States Copyright Office, Library of Congress, give us a presentation on recent updates to Copyright Law and copyright registration practice in her office; I was especially fortunate to have the opportunity to speak with her briefly, after her presentation, on the registration of adult content materials. Ms. Peters has served as the Register since 1994, and before that was Chief of the Examinations Division in the Copyright office, which processes the applications for registration and grants or denies registration. She is the author of The General Guide to the Copyright Act of 1976. She has a long list of academic distinctions, including as an adjunct law professor at both the University of Miami School of Law and The Georgetown University Law Center. She is a member of the Board of Directors of the Computer Law Association.
Copyright and the registration of copyright are two very different things; Copyright now arises and vests in the author at the time a work is created simply by its creation. However, it is not until the copyrighted work is registered that the author may bring an action for infringement of his copyright. Also, the registration of a work within ninety days of its first publication provides powerful economic advantages to the author that may make the difference between having a practical ability to enforce it and being able to do nothing effective against infringers.
Ms. Peters' job places her in charge of the process of copyright registration. Image content providers, designers, illustrators and text authors in the adult internet should know that registration of copyrightable material such as images, code, illustrations, and text within three months of its first publication vests the author with invaluable rights that are lost forever without timely registration; The author who registers his copyrightable material in the US Copyright Office within three months of its first publication becomes thereby entitled to recover his reasonable attorney's fees from the infringer as part of his judgment when he or she is successful in an infringement lawsuit; The general rule that the extraordinary remedies of attorney's fees and statutory damages are available only if the work was registered before the infringement does carry a special proviso, however, that any registration within the first three months publication will be sufficient to vest the author with rights to those remedies, even if the infringement preceded the timely registration. Absent timely US registration, he or she must bear his or her own attorney's fees, a factor that may make it impractical to bring suit against an infringer in the first place. Moreover, timely registration also permits the Court to enter presumed statutory damages for infringement without the need to present often expensive expert testimony as to the economic value of the infringement. Failure to register in a timely manner often makes it impractical to bring an action for infringement and, in my view, contributes to the prevalent atmosphere of intellectual property piracy that is pervasive in the adult internet.
I spoke to Ms. Peters in particular about the registration of adult content materials. She related that large amounts of explicit materials are received in the Copyright Office on a regular basis. The Copyright Office does not view itself as a censor of morality or obscenity in the registration process, and while there exists some judicial precedent for the proposition that no copyright can properly vest in materials that are obscene, her office simply does not get involved in issues of obscenity: Neither Ms. Peters, nor the Examination Section, nor the Copyright Office will deny registration on the grounds of obscenity; Not only do they simply not perceive themselves as censors, but there would be a thorny problem in trying to ascertain just whose "community standards" should apply in the Copyright Office, lest the standards of Washington, D.C. become imposed as those of the nation for the purposes of copyright law.
Adult content materials received for deposit in the Copyright Office are the subjects of special security measures because of historical problems with their disappearance. (Must be the janitors or members of the public. Surely not the staff!)
Should materials be received that contain what is obviously and unambiguously child pornography, it will be turned over to the Justice Department for investigation and prosecution in its discretion, as provided for by regulation.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement, consent to nothing, but make no resistance, and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is firstname.lastname@example.org. His website URL on the world wide web is http://www.xxxlaw.net