I previously discussed how cannabis works of authorship, including the design of sufficiently original logos (only the graphic elements of the logo, not the words), are copyrightable. I also alluded to the possibility that such copyrights may be unenforceable due to the federal illegality of cannabis. Indeed, whether a cannabis copyright is enforceable remains speculative as none of the U.S. federal district courts (which hold exclusive jurisdiction over copyright infringement cases) have issued an order in a cannabis copyright lawsuit. Today, I revisit this issue by looking at whether federal district courts have enforced other copyrighted illegal works and how those legal decisions may help us determine the likelihood of courts enforcing cannabis copyrights.
Under current copyright law, illegal works are often treated similarly to other works. Illegal works are entitled to copyright protection and are eligible for registration so long as the works are:
- Original, meaning that the works are independently created by their authors and possess a “modicum of creativity;” and
- Fixed in a tangible medium of expression, which allows for their reproduction.
A certificate of registration from the U.S. Copyright Office is a prerequisite to initiate a lawsuit for copyright infringement—including lawsuits alleging infringement of illegal works. To establish copyright infringement, a plaintiff must prove two elements: First, ownership of a valid copyright, for which the certificate of registration will provide prima facie evidence; and second, that the defendant copied substantial elements of the copyrighted work.
Copyright law does not require the plaintiff demonstrate the legality of the work’s content. The currently prevailing view is that “even illegality is not a bar to copyrightability.”
Because illegal works are copyrightable, illegality is not generally a defense in an infringement suit. For example, the Ninth Circuit Court of Appeals has held that fraudulent content is not a defense to infringement. The Fifth Circuit Court of Appeals reached a similar decision when it dismissed the defense of obscenity to a claim of copyright infringement. The alleged wrongdoing of a plaintiff only bars relief in rare circumstances where the plaintiff’s transgression is serious and related directly to the subject matter of the infringement action. For instance, the defense of illegality, also known as the “unclean hands” defense, has been recognized when plaintiffs falsified a court order or evidence, or misrepresented the scope of their copyright to the court and the other party.
Favoring the enforcement of copyrighted illegal works is also consistent with their authors’ constitutional right to freedom of speech. If Congress were to impose copyright restrictions on illegal works, it would essentially censor these works, which would likely be deemed unconstitutional.
So, given the that the prevailing view under U.S. Copyright law is that illegality is not a bar to either copyrightability or enforceability, it is very likely most U.S. federal district courts would enforce cannabis copyrights. Therefore, the strong likelihood of a court enforcing cannabis copyrights, combined with the ease and minimal cost of copyright registration, should incentivize you, cannabis businesses, to copyright your work.