A question came in recently: Can you file music copyrights after the music is released?

Let’s expand this, because the answer applies to copyrights in all media and in all forms. Can you file a copyright after the work is published?

Yes.

Why and When File a Copyright?

When should an author or owner of a copyright register the copyright? Ultimately, it should be before the work is published and released to the public. However, copyrights registered up to 5 years after publication are given heavy weight that the copyright is valid. Why is this important? In assessing copyright infringement, the validity of the copyright registration is very important.

To establish copyright infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. For the first element, the Copyright Act provides that a certificate of a registration made before or within five years after first publication of the work shall constitute prima facie* evidence of the validity of the copyright and of the facts stated in the certificate. For the second element, in the absence of direct evidence, copying is proven by showing (a) that the defendant had access to the copyrighted work and (b) the substantial similarity of protectible material in the two works.” To assess substantial similarity, courts engage in a detailed examination of the works themselves, to determine whether, in the eyes of the average lay observer, the allegedly infringing work is substantially similar to the protectible expression in the copyrighted work. (Prima facie evidence is evidence that is accepted as correct until proved otherwise.)

One case that is instructive is LEGO A/S v. Best-Lock Construction Toys, Inc. 404 F.Supp.3d 583 (D. Conn. 2019). In this case, a toy manufacturer brought a lawsuit against acompetitor, alleging that the competitor infringed manufacturer’s copyrights by producing and selling miniature figurines that were capable of attaching to the manufacturer’s figurines and studded blocks.

The Copyright Act provides that a certificate of a registration “shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c). This presumption orders the burdens of proof, relieving a purported copyright owner of any duty in the first instance to prove all of the multitude of facts that underline the validity of the copyright unless the alleged infringer, by effectively challenging them, shifts the burden of doing so to the purported owner. This means that the plaintiff – the copyright owner – need not prove that the copyright is valid as long as the certificate of registration is valid from the Library of Congress. However, the defendant, the alleged infringer, can challenge the validity of the certificate. How?

The provision of the Copyright Act also establishes a time limit for entitlement to the statutory presumption of validity: the certificate of registration must have been made before or within five years after first publication of the registered work. 17 U.S.C. § 410(c). The 1976 Copyright Act added the five-year requirement because the longer the lapse of time between publication and registration the less likely to be reliable are the facts stated in the certificate.

The Defendant can then challenge the validity of the certificate as one of its defenses and the plaintiff would have to prove its certificate and ownership of the copyright are valid.

For registrations made more than five years after first publication of the work, the “evidentiary weight to be accorded the certificate … shall be within the discretion of the court.” 17 U.S.C. § 410(c). Most courts conclude that untimely certificates of registration constitute prima facie evidence. While the plaintiff obtained a Certificate of Registration more than five years after first publication, courts typically extend the presumption to later obtained registrations.

One question that is often asked is about photographs and if one registration can include a collection of photographs. The Library of Congress Copyright Office provides that a single registration can effectively cover a group of published photographs if the following requirements are met: “(a) all the photographs are by the same photographer …; (b) all the photographs are published in the same calendar year; and (c) all the photographs have the same copyright claimant.” U.S. Copyright Office, Group Registration of Published Photographs, FL–124 (2012). As long as those requirements are met, the copyright registration in that collection is prima facie evidence that a photograph is registered.

The defendant in the Lego case did not offer any evidence tending to show that the certificates of registration provided by Lego are invalid or otherwise unreliable, nor did it proffer evidence challenging Lego’s ownership of the copyrights in the minifigures covered by those registrations. The Court therefore, in its discretion, held that these registrations give rise to a rebuttable presumption that Lego owns valid copyrights in the Lego minifigures. That presumption of validity is grounded in the clear weight of precedent. See, e.g., Stern v. Lavender, 319 F. Supp. 3d 650, 671 (S.D.N.Y. 2018) (in which the court treated as prima facie evidence of copyright validity a registration made twenty-one years after first publication); CJ Prods. LLC v. Snuggly Plushez LLC, 809 F. Supp. 2d 127, 143 (E.D.N.Y. 2011) (treating registration certificates issued more than five years after first publication as prima facie evidence of copyright validity “[i]n light of the totality of admissible evidence presented on this motion for preliminary injunction” (internal quotation marks and citation omitted)).

Federal appeals courts have concluded that the Copyright Office has expertise to determine in the first instance whether a filer has complied with the technical requirements for a registration certificate and that under this doctrine, the presumption may be overcome only by proof of deliberate misrepresentation. To prevail on an assertion of fraud the Defendants must demonstrate that (i) the copyright application contains one or more factual misrepresentations, (ii) the inaccuracies were willful or deliberate, and (iii) the Copyright Office relied on the misrepresentations.” A defendant cannot overcome the presumption of the copyright registration’s validity where the defendant made no allegations that the plaintiff defrauded or made deliberate misrepresentations to the Library of Congress’ Copyright Office.

Conclusion

You can file a copyright registration on a work that qualifies for copyright registration after the work is published. The owner has a big window of five years to file, but even then, registrations after five years can be accepted by courts and often are accepted by courts, but those can be rebutted.

Also see prior posts about damages in copyright law and why a copyright owner should not wait to register copyrights (because damages can be lessened).