Monday, June 8, 2009

Court denies labels' attempt to avoid fight over copyright registrations in Jammie Thomas Case

A plaintiff in a copyright infringement suit must prove two elements: 1) ownership of the copyrights at issue; and 2) an infringement of one or more of the copyright owner's exclusive rights.

Usually ownership is a routine matter; the parties often stipulate to it. Well, not in the Jammie Thomas case. According to the labels, the defense informed the plaintiffs for the first time on June 1 that because the copies of copyright registrations for the 24 songs at issue were "true and correct" rather than "certified" copies from the Copyright Office, it planned to object to them under Federal Rule of Evidence 901. The labels moved to bar such objections on the grounds that they were untimely, and asked the court to take judicial notice of the available copies. Thomas opposed, arguing that she has a right to hold plaintiffs to their burden, and that she intends to challenge the recordings' status as works made for hire.

The court set a quick telephonic hearing for this morning, and, according to Harvard Law Professor Charles Nesson, who is now assisting in Thomas' defense, has denied the motion. This will add some fireworks (and time) to the trial, but it's hard to see the labels being unable to actually prove that they own the copyrights at issue.

Pre-trial conference (where motions in limine will be heard) is set for Wednesday; trial gets under way in Minneapolis next Monday, June 15.

UPDATE: here's the order. Two points: 1) the court emphasizes that it "granted an entirely new trial on all issues"; and 2) "The Court makes no determination regarding whether, consistent with the Rules of Evidence and the Rules of Civil Procedure, Plaintiff can prove ownership and registration through means other than certified Certificates of Copyright."


  1. The defendant's motion is one of the very few I have read that may have merit. At the very least it recognizes that the work for hire provisions of Title 17 are not as broad as so many who "dabble" in copyright law seem to believe. It is precisely for this reason that competent counsel do not rely solely on the provisions in "employment" agreements and instead further buttress their rights by formal assignments supported by the exchange of additional and legally sufficient consideration. Anything less, in my view, is simply foolish.

    Assuming that the plaintiffs are cognizant of the work for hire limitations, it is almost inconceivable that assignments have not been duly executed. Of course, I have observed with much to frequency the failure of putative copyright holders to have dotted the "I's" and crossed the "T's".

  2. I wonder if the Plaintiffs ever served Requests for Admission regarding the genuineness/accuracy of the copies under Fed. R. Civ. P. 36(a)(2). If they did, and the certified copies merely confirm the accuracy of the documents they gave defendants, Fed.R.Civ.P. 37 provides that they can get their attorneys fees and costs in having to prove what could have been reasonably admitted. I could be wrong, but my guess is that they never did this or they would have mentioned it in their motion. A lesson to all lawyers: USE Requests for Admission.


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