Atlantic Records wants a lawsuit that says Cardi B’s ‘Enough (Miami)’ ripped off an earlier track dismissed, because the earlier work wasn’t registered with the US Copyright Office, and an amended lawsuit trying to circumvent the registration issue by making a state law claim is invalid.

Warner Music’s Atlantic Records has asked a court in Texas to dismiss a beat-theft lawsuit filed in relation to Cardi B’s ‘Enough (Miami)’, on the basis that the claimants sneakily changed their action from a federal law claim to a state law claim after they realised they’d forgotten to register their composition with the US Copyright Office. But, says the major, such sneaky tricks are not allowed.

Joshua Fraustro and Miguel Aguilar, producing music as Kemika1956, originally filed a pretty standard copyright lawsuit against Cardi B and Atlantic last July, claiming that ‘Enough (Miami)’ infringed the copyright in their song ‘Greasy Frybread’ under US-wide federal copyright law.

However, the following month, Atlantic’s new court filing explains, Fraustro and Aguilar filed an amended lawsuit which “replaced their claim for federal copyright infringement with a common copyright law claim under Texas law”.

“It appears this was done”, it adds, “because they belatedly realised, only after defendants’ counsel brought it to their attention” that the duo “did not have a copyright registration”. And, “it is black-letter law that a copyright registration is required to file a federal claim” for copyright infringement.

That is true. In the US, like other countries, copyright is an automatic right, which means creators have control over their work as soon as it is created. If a third party wants to copy or distribute or adapt or perform that work, they need to get permission from the copyright owner.

However, to get full protection under federal copyright law in the US, works do need to be registered. As the Copyright Office explains, although “registration is voluntary”, copyright owners “have to register if they wish to bring a lawsuit for infringement of a US work”.

If a copyright owner wants to be eligible for statutory damages in copyright infringement cases, where they can claim up to $150,000 per infringement, the work needs to be registered before any alleged infringement occurs (or within three months of publication where brand new works are infringed).

But Fraustro and Aguilar failed to register their work ‘Greasy Frybread’ before suing Cardi B and Atlantic. That’s problematic partly because it wasn’t entirely clear who owned the copyright in that work, but mainly because it means a copyright infringement lawsuit can’t be filed under federal law.

There is some state-level copyright protection in the US in addition to federal copyright law and those rights can’t be registered.

When Fraustro and Aguilar amended their lawsuit last August, making a claim under state-level common law rather than federal law, they cited legal precedent that says “a common law copyright is established the moment an original work of authorship is fixed in a tangible medium of expression”.

In this case, they added, Fraustro and Aguilar “established a common law copyright in their song when they created it and fixed it in a tangible medium by recording it”. That’s the copyright Cardi B and Atlantic infringed and there’s no registration requirement to sue for infringement under state law.

Which is all well and good. Except, Atlantic insists, the duo “cannot circumvent the need for a copyright registration merely by framing their claim under common law”, because, “the US Copyright Act preempts any common law claim that is equivalent to a federal copyright claim”.

Which means, if a work is protected under federal copyright law as well as state law, any legal action must be pursued under the federal Copyright Act. ‘Greasy Frybread’ is protected by federal copyright law, because federal copyright protection is automatic, but Fraustro and Aguilar’s lawsuit was invalid because that copyright was not registered.

“Accordingly”, the major label’s filing concludes, Fraustro and Aguilar’s “concocted claim for common law copyright infringement must be dismissed for failure to state a claim”. Without the main copyright infringement claim, additional allegations of contributory and vicarious infringement against Atlantic would fail too.