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Forum Shopping in Copyright Cases

By Randall B. Bateman and Sarah W. Matthews of Bateman IP

Attorneys are familiar with forum shopping in litigation. It is common practice for attorneys to file a case in a jurisdiction which they view to be more favorable to their client. In some cases, this involves filing suit in the plaintiff's home jurisdiction with the hope that a local jury will empathize with the damage being caused in their local economy. In other cases, it may include filing in a jurisdiction which has more friendly case law or procedural rules which work to the plaintiff’s advantage. The flood of patent cases in the Eastern District of Texas is one omnipresent example. In some copyright cases, however, forum shopping can be used to get into court in the first place.

Under 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 has been made." 17 U. S. C. A. § 411 (a). How the courts interpret this section may dictate whether or not an action may be filed. Any attorney who has experienced the situation where a client wishes to sue infringers but has not registered their copyright will understand the delay that the copyright registration procedure can create. While copyright registration may be expedited, that process is expensive and can still take several weeks to have a copyright registration in hand.1 This creates a significant pro...

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