Property, intangible

a blog about ownership of intellectual property rights and its licensing

No Payments Should Have Been a Tip Off –

A quick lesson in bringing a claim for copyright ownership – there’s a three year statute of limitations from when you knew or had reason to know about the disputed ownership, and a registration that covers your work but doesn’t name you as an author, a copyright notice not listing you, and no royalty income, are all tip-offs. Dressing your claim up as one for infringement of your own subsequent copyright registration doesn’t adequately hide that it’s really an ownership dispute that’s time-barred.

Jose Ortiz composed the score for a motion picture called “Don Dinero – Su Vida y La Calle.” He was identified as one of the “producers” of the musical score in the closing credits and on the DVD packaging, which read “Original music scored by da compadres (JAO [defendants] and Noodles).” The DVD had copyright notices that said “(P) & (C) 2003 UNIVERSAL MUSIC LATINO/GUITIAN BROTHERS MUSIC.” The copyright in the motion picture was registered effective December 24, 2003, claiming the “Entire Cinematographic Work/Pictorial Matter/Line Notes.” There were three previously released, previously registered songs used in the motion picture; they were listed separately on the back cover of the DVD and identified as “Preexisting Material” in the copyright registration. Ortiz was never paid any royalties for his work.

Ortiz obtained his own registration for the score on August 3, 2005. He sued for copyright infringement in May, 2007.

Even though two of the three defendants defaulted, ownership was not conceded because the defendants had their own copyright registration for the work. Instead, copyright ownership was actually the gravamen of the complaint. The public distribution in November, 2003 of the DVD with a copyright notice on the DVD label and packaging that didn’t list Ortiz was enough to put Ortiz on notice of the defendants’ ownership claim and started the statute of limitations clock ticking. The registration in December, 2003 was also something that should have put Ortiz on notice; he should have exercised reasonable diligence in looking at the registration. Not getting any royalties from the public distribution should also have clued Ortiz in that there was an ownership dispute.

Ortiz argued that the score was a preexisting work and therefore not covered by the defendant’s copyright registration; the facts, including the way that the three previously released works were listed on the DVD and his admission that he prepared the music for use as the “background instrumental score for the motion picture,” showed otherwise.

Ortiz’s copyright infringement claim, in truth a dispute over ownership, was time-barred.

Ortiz v. Guitian Bros. Music Inc., 07 Civ. 3897, 2008 U.S. Dist. LEXIS 75455 (Sept. 24, 2008).

© 2008 Pamela Chestek

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