Fraud on the Copyright Office. (The Law of the Line).

Fraud on the Copyright Office can invalidate a copyright registration. As you may recall, copyright registration is not a prerequisite to ownership of a copyright; copyright springs into existence automatically when a work of authorship is fixed in a tangible medium. But copyright registration is required to bring an infringement suit, and fraud on the Copyright Office will defeat registration and thus destroy the jurisdictional basis for a copyright infringement case.

Fraud requires a specific intent to deceive or cheat, but that can be shown by circumstantial evidence. So, fraud on the Copyright Office generally arises in the context of a mistake in a copyright registration that the defendant, the accused infringer, will try to argue was deliberate. If the defendant can show that the mistake was deliberate and material, and therefore fraud on the Copyright Office, then the defendant may succeed in getting an infringement suit thrown out of court. (The copyright owner may be able to re-register and re-file the suit, but may lose the right to statutory damages and an award of attorneys' fees that early registration provides.)

The Ninth Circuit has said that inadvertent mistakes in a copyright registration do not invalidate the registration and thus do not bar infringement actions, unless the alleged infringer has relied to its detriment on the mistake, or the claimant intended to defraud the Copyright Office by making the misstatement. So an innocent mistake will not invalidate the copyright registration.

It is better to avoid an argument about whether a mistake is innocent or fraudulent, however. This is one good reason to be careful when preparing your application for copyright registration. The forms are simple and the instructions are generally clear. But sometimes the issues can be tricky. In particular, be careful if the work is based upon a preexisting work, or if it has been prepared by an independent contractor. If you have any questions, it may be worth your time and money to have an attorney assist you in preparing your copyright registration forms.

Bob Godhey is a partner in the Honolulu law firm of Jackson Godbey Griffiths. A graduate of the Harvard Law School, he has degrees in electrical engineering and math. He welcomes comments at www.LawHI.com.