Gilda Radner rose to fame in the late 1970s as one of the original stars of “Saturday Night Live.” Her 1989 autobiography, It’s Always Something, became a best-seller, as the comedian provided an honest and heart-wrenching look into her battle with ovarian cancer.
That autobiography is at the heart of a recent copyright infringement lawsuit, filed by Radner’s former collaborator on the book. A federal judge has dismissed the lawsuit against the producers of a film documentary that used materials that the collaborator helped create for the book.
The book’s publisher, Simon & Schuster, hired journalist Hillary Johnson to work with Radner on writing It’s Always Something. In a series of taped recordings, Johnson interviewed Radner to help Radner organize her thoughts in drafting the autobiography.
In 2018, 29 years after Radner’s death, excerpts from the recordings of those interviews were used in the documentary film Love, Gilda, without Johnson’s approval. Johnson sued the film’s producers—Magnolia Pictures, 3 Faces Films LLC, Motto Pictures and CNN Films—as well as Michael Radner (Gilda’s brother), claiming that the recorded interviews were subject to copyright protection distinct from the book that resulted from the interviews.
The film companies had originally approached Johnson in 2016, informing her that Michael Radner found the interview tapes in his attic, and that the producers wanted to use them in the documentary. Johnson requested compensation for using the interviews, but the producers declined to pay her and also did not credit her in the film. She subsequently filed suit for copyright infringement.
On Sept. 17, 2019, Judge Vincent Briccetti for the US District Court of the Southern District of New York rejected that claim of infringement and dismissed the lawsuit. The judge did not rule on the core issue of whether or not the taped interviews could be copyrighted, instead finding that, since Johnson never registered a copyright on the recordings, she could not claim copyright infringement:
“Pursuant to the Copyright Act, ‘no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.’ 17 U.S.C. § 411(a).”
This requirement of the Copyright Act was recently taken a step further in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, in which the Supreme Court held that the mere filing of a copyright application is not sufficient to allow
a copyright owner to file suit—the copyright application must first be approved before suit can be filed.
Johnson claimed she could not register the interview recordings because the physical tapes were in the possession of Radner’s brother and he refused to provide her with copies. But Judge Briccetti suggested that she could have sought a declaration of ownership, and that her alleged inability to file was not sufficient to provide a basis for claiming infringement. Click here to read the full opinion .
The lesson to be learned from this case is that copyright registration must always precede a copyright infringement claim. No matter how blatant the infringement may seem, if a plaintiff cannot show registration of a copyright, then filing a lawsuit is a waste of time and money. Indeed, the court awarded costs and attorney’s fees to the moving defendants on the basis that Johnson’s complaint was objectively unreasonable, citing the complaint’s own acknowledgment that plaintiff’s “inability to register her copyrights deprives her of any right to sue for infringement” as indication that the claim was frivolous.
In addition, the time to file for copyright protection is as soon as possible. Do not wait for a dispute to arise before trying to seek protection—as this case has shown, obstacles have a way of appearing when dealing with a potentially adverse party. Get your ducks in a row up front to ensure you are ready to defend your copyrights if and when an infringement occurs. And when doing so, keep in mind that approval of a copyright registration application can take seven months to more than a year, absent payment for expedited examination. Also bear in mind that statutory damages of up to $150,000 per work infringed on, and the possibility for reimbursement of attorney’s fees, are available only when an owner applies for copyright registration either within 90 days of first publication of the work or before the infringement begins. In other words, if a copyright application for a published work is not filed until after the infringement begins, these statutory damages are unavailable, and attorney’s fees cannot be awarded.
In the words of the inimitable Roseanne Rosannadanna, “[i]t just goes to show you. It’s always something.” Don’t let an unregistered copyright be that something for you or your company.