Can copyrights be retroactive?

In some situations, the phrase “Better late than never” is appropriate. Registering a piece of intellectual property is not one of them. While it might seem rational to be make the claim that a photograph, once taken, is a static piece of artistic expression. As such, it would seem logical to argue that any use of it without permission constitutes a violation of the photographer’s work.

That is not necessarily true as one legal case highlights. And the lesson to glean from the matter, according to many legal observers, is that there is value for a photographer, or any creative individual, to establish an enduring relationship early with an intellectual property attorney to obtain legal protections from the outset and to defend them to the maximum extent allowed over time.

What you don’t want to happen

The consequences of not acting immediately in this regard is presented in a recent copyright case out of the U.S. District Court for the Central District of California. The issue in question was a petition by a defendant online company that allegedly had infringed on the plaintiff’s work in violation of the Digital Millennium Copyright Act.

The case started in February 2018 with the plaintiff’s suit claiming that the defendant firm had copied photos he had produced and published on his own website. The initial suit was dismissed for technical reasons with notice given to the plaintiff that he could amend the suit and refile, which he did. But the defendant moved for and won dismissal in the second instance, as well.

The defense argument

In its second request for dismissal, the defendant argued the plaintiff failed to present sufficient facts to support the alleged infringement, including the date of the alleged violation and the dates when copyright registrations had been issued. The court agreed and dismissed the matter again.

To be clear, the district court said that a review of URL addresses showed there had been multiple infringed uses of photos dating back years before the copyright registrations. And because of the plaintiff’s failure to account for all the necessary dates as prescribed by law or legal precedent, he lost standing to seek damages.

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