This case is not off to a good start

Windy City Marketing, Inc. v. Places Advertising, Inc., No. 07-6401 (N.D. Ill., filed November 12, 2007) [Download the complaint]

Windy City Marketing, a Chicago company, has filed a federal lawsuit against a startup competitor, Places Advertising, Inc. The suit alleges infringement of copyright allegedly owned by Windy City Marketing in certain bound marketing pieces called “inside chicago”. Windy City Marketing claims that Places Advertising has wrongfully copied the marketing materials and is distributing those to Windy City Marketing’s customers.

The big problem with the complaint is that there is no allegation that Windy City Marketing owns a registration in the works at issue. A quick read of Section 411 of the Copyright Act will reveal what’s wrong with this picture. You gotta have a registration before you can file a lawsuit for copyright infringement. For the plaintiff’s sake, thank goodness for Fed. R. Civ. P. 15.

4 thoughts on “This case is not off to a good start

  1. Chris Haigh

    In contrast to what is asserted here, a copyright registration is effective upon deposit. In this case (I represent the plaintiff), we had already deposited the material. A cursory review of the case law also illustrates that one need not have the registration in hand to file a complaint. See, for example, Proven Methods Seminars v. American Grants and Affordable Housing Institute. A complaint can be later amended to reflect the registration if necessary.

  2. Evan

    Chris:

    Thanks for your comment. I don't think that anywhere in the post, however, I asserted anything about when a copyright registration is effective, so I'm not sure what you're referring to when you say "[i]n contrast to what is asserted here."

    The deficiency that I observe with your complaint is that there is no allegation of registration. Sure, I believe you when you say the work in this case is registered — whether that is effective when you send it off to the Copyright Office or when you actually get the certificate in hand (the Circuits are split on that question and there's no unequivocal guidance from the Seventh). But I don't see any allegation of registration in the complaint.

    As you know, registration is a jurisdictional prerequisite, and if there's no allegation of that, then you haven't demonstrated in the pleading that the case belongs before the court. That would seem to present a pretty nasty 12(b)(1) problem.

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