A group of prestigious publishers (Oxford University Press, Cambridge University Press and Sage Publications) brought a copyright infringement suit against Georgia State University, claiming that the University’s “e-reserve policy” under which students had access to electronic version of course works, exceeded the bounds of fair use, alleging ninety nine separate instances of infringement.

After a trial, a 350-page decision has just been released and it is interesting in that it delivers a bright-line rule for what constitutes fair use – for books of nine or fewer chapters, fair use is use of 10% of the total page count or less; for books of ten chapters or more, the fair use threshold is use of less than a single chapter. Cambridge University Press v Becker (ND. GA. May 11, 2012).

But that’s not what we want to draw to your attention today.

Over ONE-THIRD of the claims were dismissed prior to the Court’s fair use analysis because the publishers didn’t have the paperwork to prove that they owned copyright in the relevant work.

The publishers either couldn’t provide authentic certificates of registrations, or couldn’t identify assignments, or produce work-made-for-hire agreements from authors of individual chapters.

The important lesson is twofold:

(1) The Copyright Act has a statute of frauds – all transfers of ownership have to be in writing; and
(2) That which goes without saying often goes without doing.

It goes without saying that the publisher (or software developer or production company or website operator) is “supposed” to be the owner of the commissioned work. But getting the assignment in writing, even something as simple as “I, author, assign any and all worldwide rights I may have in the work to ____”; well, it sometimes gets lost in the rush to get the product out the door. And as for filing a copyright application? Next week, after things calm down.

So avoid the trap that snared these prestigious publishers. Ask yourself RIGHT THIS SECOND: for all your important copyrightable works (the website, the ad campaign, the smartphone app) – do you have signed writings from all the involved parties? Did you file an application for copyright registration?

Not to put too fine a point on it: You cannot prevent the unauthorized infringement of your copyrightable property, or receive statutory damages for infringement, without doing this.