Statutory Cosmetic Surgery: Misinterpretation of the Copyright Act's Registration Requirement in Cosmetic Ideas, Inc. v. IAC/InteractiveCorp

I. INTRODUCTION In the era of Internet-at-your-fingertips, cars can be registered within minutes online. Instead of mailing registration cards, new electronic products can be registered instantaneously through the Internet. University students can even register for classes at the mere click of a mouse. With such convenience, most people never consider at what point "registration" occurs - that is, whether cars, electronic products, and students are registered when the online forms are electronically submitted or when, milliseconds later, the servers respond by accepting the registration. However, in the context of copyright registration, this distinction matters. The Copyright Act permits copyright holders to initiate actions for infringement only after the copyright has been "registered" by the Copyright Office.1 Because the time between submitting an application and having the application acted on by the Copyright Office often runs more than six months,2 as opposed to the milliseconds in many other registration contexts, it is important for potential plaintiffs to know whether they can bring suit after submitting the application materials, or whether they must wait for the Copyright Office to act. Unfortunately, for some plaintiffs, waiting the more than six months for the Copyright Office to act places them beyond die statute of limitations, tiius removing any possibility of recovering for infringement. In Cosmetic Ideas, Inc. v. IAC/InteractiveCorp3 the Ninth Circuit addressed this very issue, which had already split circuit and district courts across the country. The court, by looking at not only the plain language of the Copyright Act but also the legislative purpose and broader context of the statute, held that the plaintiff's copyright was "registered" at the time it submitted an application to the Copyright Office, thus allowing the case to proceed on the merits. This Note disagrees with die Ninth Circuit, instead arguing that it was unnecessary for the court to analyze legislative purpose and die broader context of the statute because the plain language is clear that die Copyright Office must act on an application before it is registered. Thus, die court should have dismissed the claim because it was brought before the copyright was registered. This Note proceeds as follows. Part II details the facts and procedural history of Cosmetic Ideas. Before analyzing the court's opinion in Part IV, Part III outlines the legal background - including die current circuit split - leading up to the court's decision. Part V then analyzes die Nindi Circuit's decision, concluding that the court made significant errors in statutory construction in holding diat a copyright is registered at the time the application is received by the Copyright Office. Part VI briefly concludes. II. FACTS AND PROCEDURAL HISTORY This dispute arose between two jewelry retailers: Cosmetic Ideas, Inc., doing business as Sweet Romance Jewelry Manufacturing ("Cosmetic"), and IAC/InterActiveCorp, the parent company of the ubiquitous Home Shopping Network ("HSN"). Cosmetic manufactures and retails costume jewelry designed by artist and historian Shelley B. Cooper and inspired by antique and vintage items.4 It sells its products through a variety of high-end jewelry retailers, such as Hearst Castle, Canterbury Cathedral, and Fortnum and Mason, as well as on its own website.5 HSN is a 24-hour-a-day basic cable shopping network reaching over 90 million homes and selling a broad range of products, including clodiing, exercise equipment, food and cooking devices, and of course, jewelry.6 In 1997, Cosmetic designed a piece of costume jewelry called the "Lady Caroline Lorgnette," a pendant featuring an acrylic magnifying glass adorned with crystals to simulate jewels.7 Two years later, Cosmetic began to manufacture and sell copies of the Lady Caroline Lorgnette through its distributors.8 Cosmetic claims that sometime between 2005 and 2008, HSN began "manufacturing and distributing copies of a 'virtually identical' necklace" to the Lady Caroline Lorgnette. …