The need to register your US copyrights!

July 2011

Sound recordings, music publishing

A Finnish record company’s claim that pop music producer Timbaland and pop star Nelly Furtado plagiarized its recordings and music has been thrown out by  Miami federal judge Edwin Torres, who said that  Kernal Records and Oy’s claim that its song and recording  “Acid Jazzed Evening” was the basis for parts of Furtado’s hugely popular 2006 album “Loose.” Judge Torres approved a motion by Miami-based Timbaland, whose real name is Timothy Mosley, and Furtado, for summary judgment and refused to allow the Finnish company to seek an overdue copyright and amend its complaint.

Kernal Records and Oy were seeking $10 million to $20 million in damages on one of the biggest selling albums of the decade and the copyright infringement claim was that a Norwegian musician who sold his music to Kernal wrote and recorded a song that was plagiarized by Furtado.

The case centered on whether the European tracks were first published on the Internet – or in Europe – as under U.S. copyright law,  music and sound recordings published first on the Internet are considered U.S. created and thus must be copyright registered to be protected in the US. The plaintiffs argued Glenn Rune Gallefoss published his composition on an Australian disk magazine, Vandalism News, in 2002, and put it on the Internet later that year. In 2007, Gallefoss transferred all rights to the recording to Kernal, which issued a new recording called “Do It.” The company sought a copyright recently and wanted to amend the complaint to include the copyright information. But the defendants argued (and Judge Torres agreed) that the work met the definition of a “United States work” under federal copyright law based on the Internet distribution, and Kernal was required to register it before suing for copyright infringement with the Judge saying “as there was no dispute that plaintiff had failed to obtain a copyright registration for AJE or for any claimed sound recording or composition,” Kernal “could not initiate or maintain this action.” The plaintiffs also disagreed with the premise that Internet publication equates to simultaneous worldwide publication. They cite a federal case in Delaware in which a judge ruled photos published on a German website did not amount to simultaneous publication in the United States and Germany, the only similar case cited. The Plaintiffs have said they will appeal Judge Torres decision.

And on a similar point – see a review of the unsuccessful the action(s) bought by Sly Johnson against legendary rappers Cypress Hill – again a case that ultimately failed because of a lack of US copyright registration – more from Aurelia J Schultz on the IPKat at

Johnson v. Cypress Hill, et al [Johnson II], Nos. 08-3810, 09-2213 & 10-1733 (June 1, 2011),

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