The recent case of DO Denim, LLC v. Fried Denim, Inc. (handed down by a NY federal court on June 17) reminds us that the mere filing of a copyright application with the United States Copyright Office is NOT enough to protect your intellectual property.  Instead, you need to have an actual certificate of registration from the Copyright Office to be able to enforce your copyright. 

Confused?  Perhaps a bit of (legal) background will put this in perspective for you.

Rule 1:  Everything that you create (that has a modicum of originality) is protected by copyright the moment that it's put in a tangible form.  In other words, once you write it down, record it, or type it into your laptop, you have a protectible copyright in your work. 

Rule 2:  There's a catch.....you can't enforce your copyright until you register your work with the US Copyright Office.  In other words, you could author the next great novel, or write the script for an Academy Award-winning movie, but if you don't copyright your work, others could (and often will) steal your creation with impunity—and there's little you could do about it until and unless you obtained a copyright registration for your work.

And that's the moral of the DO Denim story. 

Nothin' But the Facts

The plaintiff in the DO Denim case was a well-established, lifestyle apparel company that designed, manufactured and marketed jeans.  In 2005, the plaintiff created two designs that were to be stitched onto the back pockets of its jeans-the “Wings Design” and the “Dragon Design.”

The plaintiff delivered the deposits, applications, and fees required for copyright registration for both the Wings Design and the Dragon Design to the United States Copyright Office.  At the time of the lawsuit, however, the Copyright Office had NOT yet responded to the plaintiff's copyright applications.  (Cue the ominous-sounding music here.)

The defendant produced and sold jeans using copies of the Wings Design and the Dragon Design. The plaintiff sued the defendant.  The court dismissed the suit.  Ouch.

Why?  (If you're not sure, then re-read the "Here's the catch" paragraph above.)

Is there a lesson to be learned here?  Of course there is—why else would I blog about it? 

Lessons Learned

Lesson 1: Copyright your stuff.  If you don't copyright your stuff, you can't protect your stuff under copyright law.  Given that the Copyright Act empowers the court to give a copyright owner up to $150,000 in damages per act of infringement, it behooves you to copyright your stuff.

Lesson 2: Don't even try to file a lawsuit for copyright infringement until you get the gold star of registration from the Copyright Office.  (Literally, you will receive a certificate with a gold star from the Copyright Office.)

The registration process can take 6 months or longer, so plan accordingly.  If you need a registration sooner than that (because, let's say, someone is about to steal your stuff or they already have),then you can file an expedited application and obtain a registration in a matter of weeks.

Questions?  Check with the US Copyright Office, or your attorney, or me.