In a suit involving allegations that Nelly Furtado’s song Do It illegally copied the musical work Acidjazzed Evening, the U.S. Court of Appeals for the Eleventh Circuit affirmed summary judgment for defendants based on plaintiff’s failure to register the copyright or prove it was exempt from that requirement as a foreign work.  Kernel Records Oy v. Mosley, Case No. 11-12769 (11th Cir., Sept. 14, 2012) (Black, J.).

Prior to filing a lawsuit for copyright infringement of a United States work, the work must be registered with the Copyright Office.  Owners of foreign works, however, may bring suit without first registering.  A United States work includes works that are published either first in the United States or simultaneously in the United States and other countries.  “Publication” is a term of art.  A determination of where a work was first published requires both an examination of the method, extent and purpose of the alleged distribution to determine whether that work was sufficient for publication, and an examination of both the timing and geographic extent of the first publication to determine whether the work was published abroad.  

In 2002, Glenn Rune Gallefoss created the musical work Acidjazzed Evening, which first appeared in the Australian disk magazine Vandalism News Issue #39.  Plaintiff Kernel Records subsequently acquired the copyright on Acidjazzed Evening and brought suit against Furtado, music producer Timbaland, whose legal name is Timothy Mosley, and others alleging copyright infringement without first registering the copyright. 

Defendant Mosley subsequently filed a motion for summary judgment alleging that Acidjazzed Evening was a United States work because Vandalism News was an internet publication and therefore Acidjazzed Evening was simultaneously published worldwide.  Kernel opposed this motion by arguing that Acidjazzed Evening was first published in Australia on a physical computer disk and uploaded to the internet months later, i.e. not simultaneously.  The district court granted summary judgment, finding that the record was clear enough to affirmatively establish internet publication.  Given that Acidjazzed Evening was published on the internet, the district court found that it was published simultaneously worldwide, making it a United States work. 

The 11th Circuit disagreed with the district court’s underlying rationale, but agreed with its ultimate finding.  The 11th Circuit found that Mosley did not meet his burden of showing that Acidjazzed Evening was undisputedly first published on the internet.  Even if he did, the court found, this alone could not definitively establish worldwide simultaneous distribution.  In its reasoning, the court noted that “online” or “internet” distribution could occur through a number of methods, including through public websites, restricted websites, peer-to-peer networks or email, not all of which would constitute simultaneous worldwide distribution. 

Although it disagreed with the district court’s rationale, the 11th Circuit affirmed its finding on alternative grounds.  As plaintiff, Kernel bore the burden of proof that it had satisfied the registration prerequisite, or that it was exempt as a foreign work.  Kernel did not adequately develop the record to establish that distribution of the Australian disk magazine was sufficient to constitute foreign publication.  Accordingly, because Kernel did not satisfy the registration requirement or put forth sufficient evidence that it was exempt, the 11th Circuit affirmed summary judgment.