Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 21 of 47
722 F.3d 591, 593, 596–99 (4th Cir. 2013) (same); 2 Nimmer on Copyright § 7.20[B][1]; (“mention in a registration certificate of only one of two co-authors does not affect the validity of the registration”). The Circuit did not disturb this holding, and Defendant has not offered any new evidence or argument that would cause the court to reconsider.
As in ASTM I, Defendant has not presented any “evidence disproving Plaintiffs’ authorship.” ASTM, 2017 WL 473822, at *7. Consequently, the court finds that Plaintiffs own copyrights in each of the 217 standards at issue and therefore have standing to bring their claims.
- b. Valid Copyrights
In ASTM I, the court held that Plaintiffs owned “valid” copyrights, rejecting Defendant’s arguments that the standards either were never copyrightable or lost their copyright protection upon incorporation by reference into federal regulations. See id. at *8–15. The Circuit did not rule on this issue, and instead “left for another day” the “thorn[y] question of whether standards retain their copyright after they are incorporated by reference into law.” ASTM, 896 F.3d at 441. On remand, Defendant has not presented argument or evidence regarding the validity of Plaintiffs’ copyrights and therefore the court need not reconsider the issue.
- 2. Copying an Original Work and the Fair Use Defense
It is undisputed that Defendant reproduced and posted online for display or distribution the 217 standards at issue. In ASTM I, the court rejected the application of the merger or scènes à faire doctrines as affirmative defenses, a holding the Circuit did not disturb and that this court will not revisit. Defendant’s remaining argument is that its copying and posting of the standards was “fair use.”
The fair use defense provides that “the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching
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