Copyright Suits Could Suffer From Lack Of Registration

thrown out of court."

The implications of haphazard industry registration practices could extend to the recent lawsuits by the member labels of the Recording Industry Assn. of America (RIAA) against MP3.com and Napster.

Particularly in the case of the ongoing lawsuit between Universal Music Group (UMG) and MP3.com, there is reason to believe from the findings of the surveys that UMG might have been able to bring forward a larger number of recordings whose copyrights had been infringed had they been registered.

The recordings chosen for Billboard's search survey are from several different charts—60 top-selling albums from four Billboard charts from January and June of 1999. To ensure a wide spectrum of musical tastes and preferences, the survey includes a total of 40 albums from two "critics' favorites" lists from The Village Voice's Pazz and Jop polls for '97 and '98.

The majority of the recordings surveyed were on imprints distributed by the five U.S. major-label companies. Of the 31 unregistered recordings, five were indie releases and four were from an indie label partly owned by a major-label company. All of the companies with recordings cited in our search proved spotty or incomplete in their copyright registrations.

Under the Copyright Act, only if a recording has a prior-to-infringement Sound Recording (Form SR) registration is the copyright owner of the recording entitled to the highest level of legal compensation available under federal law in civil case copyright infringement lawsuits—specifically, statutory damages and lawyer's fees.

All works, including sound recordings, are automatically copyrighted and protected upon first publication or release. Registration of copyright with the Copyright Office is no longer a requirement. However, registration is encouraged by the Copyright Office because without it, the legal remedies available to the owners of those recordings are not available.

The owner of a recording that is registered "late"—after the infringement occurs—is only entitled to ask for "actual" damages in infringement suits and cannot collect lawyer's fees. The determination of actual damages, say music industry lawyer sources, is a much more difficult thing to document—and prove in court.

In the survey utilizing Billboard-related titles, four samples of 1999 releases were chosen. The samples are the top 15 recordings on The Billboard 200's best-selling albums in the Jan. 23, 1999, and June 26, 1999, issues, and the top 15 best-selling albums on the Heatseekers charts from those two dates. In that survey, 20% were not registered.

In the survey using The Village Voice's Pazz and Jop polls, the top 20 picks for 1997 and 1998 were chosen. In that survey, 41% of the recordings were not registered for copyright.

The information and reference division of the U.S. Copyright Office and the Recorded Sound section of the Library of Congress conducted the research on the registrations this summer and fall.

Recordings from 1997, 1998, and the first half of 1999 were selected because the online registration information on the Copyright Office's Web site is six to nine months behind due to a processing backlog. However, Joan Kaufman, chief of the information and reference division, says the Web site documents all in-process and pending registrations. Six of the 100 recordings surveyed were still "in process."

According to figures provided by the RIAA, more than 33,000 albums were released last year, a figure representing those released by major labels, national independent labels, regional and local labels, and by the owners of self-produced "basement" recordings. According to SoundScan research, major-label releases in 1998 accounted for about one-tenth of the total number—about 3,330 recordings.

A top Library of Congress official believes the percentage of non-registered albums may even be higher than found in the two surveys. Sam Brylowski, chief of the Library of Congress' Sound Recording Research Center, estimates that in recent years, as many as two-thirds of total releases have not been registered with the Copyright Office.

"We have statistics that show we received about 10,000 registered recordings," he says. "Now, we didn't include registrations [Form PA] of individual songs, the underlying musical compositions [by music publishers and songwriters]. We're talking about copyright registration of the sound recording itself." The low percentage does not represent a new development, he says. "This has been going on for years. I've been concerned."

A senior RIAA official says he doesn't believe the reported low percentage involves major-label releases and says that every member-label recording involved in civil infringement lawsuits in recent years, without exception, has been registered.

RIAA senior VP of international Neal Turkewitz, who is familiar with domestic and international piracy cases, says, "I can't think of any instance in any infringement lawsuit in which we've been involved where the recordings in question weren't registered."

Turkewitz says the RIAA has always impressed on member companies the importance of registration and believes member companies are compliant. "Maybe the figures reflect 'noncommercial' recordings where they don't bother to register."

How about the fact that without registrations, a court will throw an infringement case out? "That's absolutely true," says Turkewitz, "but we've never been faced with that situation." He also says that in criminal piracy cases, "registration is irrelevant, doesn't come into play, because the 'statutory damages and lawyer's fees' remedies only apply to civil cases."

Turkewitz had some concerns that the surveys "might be statistically irrelevant" or "skewed."

Library and Copyright Office officials can only guess why the companies are so inconsistent in sending in registrations. Says Brylowski, "It changes, first of all—a label will be very consistent about registration, and then there'll be a trickle, or nothing. Maybe it's because of the turnover of personnel at record companies—you know, one person who's leaving might make sure the new person knows how important it is. Somebody else might not. Or the new person might be saddled with other duties or simply not realize the consequences."

Copyright registration of a sound recording on a Form SR costs $30 and must be accompanied by two deposit copies of the recording. That means that each major label, which releases an average of 500 recordings a year, must allocate about $15,000 a year for registration costs (and send along a total of 1,000 registration copies).

David Carson, general counsel for the Copyright Office, says that "perhaps, and I'm only guessing here, the very competent lawyers [at labels] have made some cost-benefit analysis and decided that compared with the number of infringement cases, they can live with it. But this is just a guess."

To be fair, the Copyright Office hasn't made a point of explaining to companies and other copyright owners that even though registration is not required, without it, owners are not offered compensation opportunities in infringement cases. But it's clearly spelled out in the Copyright Act.

Section 412 of the act makes clear that registration is a prerequisite for remedies for infringement. "In any action under this title, other than an action brought for a violation of the rights of the author under Section 106A(a) [distortion or mutilation] or an action instituted under Section 411(b), no award of statutory damages or of attorney's fees, as provided by Sections 504 and 505, shall be made for—

"(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."

The Copyright Office's Circular 56 also makes it clear. "Under the 1976 Copyright Act, which became effective January 1, 1978, a work is automatically protected by copyright when it is created. A work is created when it is 'fixed' in a copy or phonorecord for the first time. Neither registration in the Copyright Office nor publication is required for copyright protection under the present law."

But the circular says there are "certain advantages to registration, including the establishment of a public record of the copyright claim. Except for certain foreign works, copyright registration must generally be made before an infringement suit may be brought. Timely registration may also provide a broader range of remedies for an infringement of copyright."

Besides registration, the Copyright Office requests two deposit copies from owners for the Library of Congress. While deposit does not affect remedies offered, Brylowski says the percentage of recordings sent in as new-release deposit copies is slightly higher than registrations. "I'd say about half of all albums released are sent in to us."