Not McLovin' It

Never underestimate the power of formality. We know that registering a copyright can seem like a pain -- as well as an unnecessary expense. After all, copyright protection exists whether a work is registered or not. Relying on this, many artists opt for the so-called "poor man's copyright." They put their work in an envelope and mail it back to themselves and rest easy knowing that they have fully protected themselves. Well, guess again. As a photographer in Puerto Rico learned, the failure to formally register a work with the Copyright Office can yield harsh results.

Antonio Amador is an artist who specializes in photographs of the Puerto Rican landscape. In 2006, Amador discovered, to his considerable surprise, that the McDonald's restaurant at Luis Munoz Marin International Airport had enlarged copies of two of his photographs on display in the restaurant. To make matters worse, the restaurant had displayed these photographs since 2001. Amador had not given his permission for McDonalds to enlarge and hang his photographs. And Amador had gone through the formalities of registering his copyrights in his work -- one in 2004 and the other in 2006. However, he had published the photographs in 1999 and 2003. Publication under the Copyright Act essentially means that they were offered for sale.

Understandably upset, Amador sued McDonalds seeking statuory damages, which can be up to $150,000. It should have been an easy case to win. After all, the photographs were clearly his, he had observed the formality of registering his Copyrights, and McDonald's clearly infringed upon his rights by enlarging and then displaying copies of the photographs without permission. The result, however, may seem surprising. The United States District Court of Puerto Rico ruled that Amador was precluded from recovering statutory damages and attorneys fees. Amador v. McDonald's Corp. et al., No. 07-1312, 2009 WL 349804 (D.P.R. February 11, 2009). In other words, Amador lost the case.

Here's where Amador went wrong. He did register his work with the Copyright Office, but he waited too long to do so. To be eligible for statutory damages under the Copyright Act, an artist must register the work within three months of first publication or prior to the acts of infringement. In this case, Amador didn't do either. He formally registered his works several years after publication and several years after McDonald's act of infringement.

Before you lick the next envelope addressed to yourself, think of poor Amador. Copyright registration is easy to do and not that expensive. Also, registering the copyright gives you a powerful tool in policing potential infringement.

Hero Trumps Romantics

If you practice really hard, you could have an opportunity to try your hand at The Romantics' "What I Like About You" on Guitar Hero. Apparently, The Romantics weren't thrilled about video game immortality and they sued. The Romantics et al. v. Activision Publishing, Inc., et al. We'll discuss two theories of interest.

First, The Romantics asserted a violation of their right of publicity. The right of publicity is a state common law concept that protects an individual's right to commercially exploit their own name and likeness. Here, The Romantics sought to protect the sound of their voice, which they claimed was distinctive -- like Bob Dylan is distinctive. Michigan law has never recognized a right to protect the sound of a voice, even a distinctive voice. There is plenty of logic in this. Imagine all of the impressionists that would be out of work.

Second, The Romantics argued that Guitar Hero traded on their name in fame in selling the game -- a claim we lawyers call false endorsement. Again, The Romantics based their claim on their "distinctive sound.". Here too, the Court found no support for this position in the caselaw. On this claim, the Court concluded that The Romantics had failed to establish that the use of the song in the game was likely to cause confusion or mistake between the game version of the song and the original. There was no dispute that the song version of the game was a new recorded version, for which the game publisher had obtained a synchronization license. The result seems right to us. Any dissent?