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17.6 Copyright Infringement—Copyright Registration Certificate (17 U.S.C. § 410(c))

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This chapter is being reviewed in light of comments solicited by the Committee from the public. 

17.6 COPYRIGHT INFRINGEMENT— COPYRIGHT REGISTRATION CERTIFICATE (17 U.S.C. § 410(c) 

A copyright owner may obtain a certificate of registration from the Copyright Office. 

[When defendant does not present evidence regarding validity or ownership of copyright] 

The evidence in this case includes Exhibit ___, a certificate of copyright registration from the Copyright Office. You are instructed that the certificate is sufficient to establish that there is a valid copyright in [identify the work in question].] 

[When defendant presents evidence regarding validity or ownership of copyright] 

The evidence in this case includes Exhibit ___, a certificate of copyright registration from the Copyright Office. [If you find that this certificate was made within five years after first publication of the plaintiff’s work, you may consider this certificate as evidence of the facts stated in the certificate.] From this certificate you may, but need not, conclude that: [state specifics of the certificate relevant to the case, e.g., that plaintiff’s work is the original and copyrightable work of the author and that the plaintiff owns the copyright in that work],which I explain in Instructions [insert instruction numbers relevant to elements of plaintiff’s burden].] 

Comment 

This instruction should be given if the plaintiff submits a copyright registration certificate made before orwithin five years of first publication. See 17 U.S.C. § 410(c) ("In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.") "For a definition of publication, see 17 U.S.C. § 101. 

A copyright registration certificate can shift the burden of proof concerning plaintiff’s ownership of a valid copyright. United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir.2011). "For instance, if a copyright holder secures a registration certificate within five years after first publication, such certificate will constitute prima facie evidence of both the validity of the copyright and the facts stated in the certificate." Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612, 619 (9th Cir.2010) (citing 17 U.S.C. § 410(c)). 

Under the Copyright Act, the party claiming infringement must show ownership. See Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir.2003) ("Ownership of the copyright is … always a threshold question." (quoting Topolos v. Caldewey,698 F.2d 991, 994 (9th Cir.1983))).