Can I claim copyright on my work when my copyright papers are due?

Asked over 1 year ago - Winchester, TN

A year ago I hired a person as my talent manager for my music career . I sent him 3 of my songs for promotion purposes but then considering that he was no good as a manager I fired him . Now a year later , I see one of MY SONGS on his you tube channel with HIS name on it claiming he wrote and produced the track while I merely performed it which is NOT TRUE . So I want to sue him for copyright infringement . The thing is that my copyright papers are not here yet even though I made the application a year ago . I'm not even provided a diary number for the application , and now I'm scared that if I file a lawsuit against him then I won't have enough grounds to do that since I don't have the copyright papers . Is there any other way by which I can get him to pay up for this disgusting thing he pulled ?

Attorney answers (3)

  1. Maurice N Ross

    Pro

    Contributor Level 20

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    Answered . This is a frustrating and unfortunately common situation. But you have good remedies.

    First, you should retain counsel to send a take down notice to You Tube pursuant to the provisions of the Digital Millennium Copyright Act ("DMCA"). This notice must be prepared properly and is not a DIY job, particularly if you have never sent one before. On receipt of this notice, You Tube will at least temporarily remove the song from its web-site. If your former talent manager objects and notifies You Tube, You Tube may decide to re-post the video in which event your only remedy would be to sue your former manager for copyright infringement.

    Registration or at least an application for registration is a prerequisite for bringing suit. Courts are divided on whether a registration certificate must issue from the Copyright Office to satisfy the registration requirement, or if it is sufficient for the Copyright Office to have received a complete
    registration application. from the Copyright Office to satisfy the registration requirement, or
    if it is sufficient for the Copyright Office to have received a complete registration application. The plain language of the statute, which says that no action can be instituted “until” copyright registration “has been made” certainly suggests that a completed registration is a necessary precondition to filing suit. Along these lines, a number of courts require issuance of a complete registration in order to file suit. This includes courts in Tennessee. Other courts have adopted an “application approach,” deeming that the work registered at the time the application is received by the Copyright Office. Most recently, the Ninth Circuit endorsed the application approach, and the trend seems to be in that direction That court concluded that, while the language of the Copyright Act was indeterminate, a number of considerations favored the application approach, such as avoiding unnecessary delay in litigation, the statue’s disfavor of needless formalities, and the risk that a copyright holder might forfeit his or her rights if the statute of limitations period has run

    Unfortunately, you are in Tennessee which means that you probably will need to wait for the registration to issue to bring traditional copyright infringement claims. It is possible that you could bring suit more quickly by alleging circumvention in violation of the DMCA (where registration is not a prerequisite to suit) but this does not seem to be a circumvention claim. Even if you cannot bring suit immediately, it is likely that you will receive your registration certificate (or a rejection) within a year or so of filing the application, at which time you can bring suit. Interestingly, in the unlikely event that your application is rejected, you can bring a copyright suit which would include a challenge to the rejection.

    As a practical matter, the quickest available remedy is the DMCA takedown notice, which You Tube will probably honor. Thereafter, you can bring suit after you receive your copyright registration. If you filed your application within three months of the first publication of your song, you can seek attorneys fees and statutory damages of up to $150,000, but if you never recorded and published this song you can't seek statutory damages and attorneys fees and your damages will be very small. Copyright cases are expensive so if you want to pursue this you need to be prepared to pay a substantial amount of legal fees (often 6 figures or more).

    Finally, aside from civil remedies, you may wish to ask your attorney to notify the F.B.I. and Department of Justice--because what your former manager did could make him liable for criminal copyright infringement, and quite possibly other federal crimes such as mail fraud and wire fraud. One thing is certain--you need to retain counsel to pursue this for you; self-help won't work here.

  2. Richard T Matthews

    Contributor Level 12

    1

    Lawyer agrees

    Answered . You should get someone experienced with this type of litigation to look into this immediately. The standard copyright application process is slow, but can be expedited. I would want to look at the forms you have.

    This is not to be construed as legal advice, and I am not your attorney, A conflict check and engagement letter... more
  3. J Scott Scarbrough

    Contributor Level 13

    1

    Lawyer agrees

    Answered . You are not required to have a registered copyright i order to stop someone from infringing your copyright. (But, you do have to be able to prove it is your work.)
    What the registration of copyright provides is both, the proof you created the work and the ability to obtain damages from an infringement lawsuit. Therefore you want to make sure the work is copyrighted.

    Hire a copyright attorney to assist you with the status of the copyright application. And search for one with litigation experience to bring suit against your ex-manager.

    Good luck.

    My disclaimer is simply that Avvo already has an adequate disclaimer.

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