Copyright Owner Fails To Establish Foreign Publication of Work, Loses Case

Kernel Records Oy owns the copyright for a song entitled Acidjazzed EveningKernel sued Timothy Mosley and others for infringing Kernel’s copyright in Acidjazzed Evening with the song entitled Do It.  Kernel did not register its copyright in Acidjazzed Evening with the U.S. Copyright Office before filing suit against Mosley in the U.S. or before the district court made its final decision.  Kernel argued that Acidjazzed Evening was first published as a foreign work, so that registration in the U.S. was not required for Kernel to sue Mosley for copyright infringement.  Mosley argued that Acidjazzed Evening was first published on the Internet, was therefore simultaneously published throughout the world, and that registration in the U.S was required before Kernel could sue Mosley for copyright infringement in the U.S.

The district court agreed with Mosley and granted Mosley’s motion for summary judgment.  The Eleventh Circuit Court of Appeals ruled that there was a genuine issue of material fact regarding the publication of Acidjazzed Evening and that the district court erred in granting Mosley’s motion for summary judgment.  The Eleventh Circuit upheld the district court’s decision in Mosley’s favor on the alternative ground that Kernel did not present sufficient evidence to show that it complied with the statutory requirements regarding publication.

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