Many years ago, as a young lawyer, I experienced the utter joy of helping a client dismiss a copyright infringement lawsuit against it, because the plaintiff’s claimed copyright hadn’t yet been registered with the Library of Congress.

Seemed like an obvious error for the plaintiff to file when it did, since the federal copyright statute, according to my reading, required that registration be made (or denied) before a lawsuit could be brought, mere application was not enough.

Over the last twenty-five years, I’ve observed creative lawyers convince some courts that the language isn’t that clear, leading to a split in the various federal courts, some courts allowing suit based on the mere filing of an application.

So, imagine my surprise this morning, to read that the U.S. Supreme Court has decided the issue once and for all: It is actually pretty clear from the language of the statute, mere applications to register are not enough to allow filing a lawsuit.

That’s right, earlier today, the U.S. Supreme Court issued its decision in Fourth Estate Pub. Benefit Corp. v., Justice Ginsburg delivering the unanimous decision of the Court:

“Impelling prompt registration of copyright claims, 17 U.S.C. §411(a) states that ‘no civil action for infringement of the copyright in any United States work shall be instituted until . . . registration of the copyright claim has been made in accordance with this title.’ The question this case presents: Has ‘registration . . . been made in accordance with [Title 17]’ as soon as the claimant delivers the required application, copies of the work, and fee to the Copyright Office; or has ‘registration . . . been made’ only after the Copyright Office reviews and registers the copyright?”

“For the reasons stated, we conclude that ‘registration . . . has been made’ within the meaning of 17 U. S. C. §411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.”

So, with that, at least two takeaways emerge.

First, those who create copyrightable expression have yet another incentive to promptly register the copyrights in their creative works.

Second, issues that seem obvious on their face can nevertheless, through creative lawyering, tie the courts up in knots for decades.

Laurel Sutton, Senior Strategist at Catchword Brand Name Development

Of all the marketing people in the biz, you’d think a PR firm would have the best instincts for names that appeal, rather than repel, the public at large. A firm in Austin, Texas that specializes in food and drink recently chose the name Perennial PR, which is pretty good, by naming standards: it’s alliterative, has nice associations with longevity and beautiful flowers, and would likely offend no one. It’s a safe choice, in contrast with the firms previous name: Strange Fruit PR.

Does that name make you stop reread the sentence? Or does it just seem like a fun way to reference their unique take on hospitality and food & drink?

Perhaps it’s a generational thing. The song “Strange Fruit”, recorded by Billie Holiday in 1939, was explicitly about the lynchings of young black men in the American South. It was named the song of the century by TIME magazine in 1999 and added to the National Recording Registry by the Library of Congress in 2002. It continues to be covered by various artists and has inspired other creative works. It’s a song and a metaphor that has never really departed from society’s stage.

But it would be a mistake to assume that everyone in the U.S. shares that knowledge – especially those under the age of 40. Perennial’s co-founder, Mary Mickel, explained in a statement to the American Statesman, “We of course Googled to ensure that it was not taken elsewhere and found the Billie Holiday song online. Thinking it would have nothing to do with our firm, and since it was written in 1939 it wouldn’t be top of mind in the public consciousness. We now know we were naïve to think that, and should have known better.”

It’s a good apology; too bad it had to come after they were called out on Twitter by writers like Audra Williams and Mikki Kendall. It’s interesting that they started using the name Strange Fruit PR back in 2012, but got real heat for it only in the righteously angry days of late 2014. Up until the change, they’d even defended the name as encompassing “the uniqueness and creative individuality that our clients reflect”. (That’s some good PR-speak!)

Lesson #1? Google can only provide you with data; it can’t tell you which decision is correct. Evaluating Google results when researching, say, your new company name, is a skill in and of itself; as we in the naming business like to say, “Don’t believe everything you read on Urban Dictionary.”

And Lesson #2: When people tell you that your brand name is problematic, you should listen to them. If you’re privileged, you may have lived a life in which a song like “Strange Fruit” isn’t relevant; but you must acknowledge that, for a significant percentage of your audience, the sentiments of the song are all too real.

About the generational thing: I have noticed that many of my naming clients, especially the younger ones, are not very sensitive to (what seem to me) overtly negative WWII references. “You might not want to use Axis as a name, or SS as a product model prefix,” I will point out gently. Blank stares.

Also noted: there’s a performing arts company in Melbourne, Australia called Strange Fruit, but one suspects the phrase doesn’t have the resonance there as it does here. This is not to deny the long history of racism against Australian Aboriginal people; but Australia does not have the experience with slavery and its horrific aftereffects as does the U.S. I wonder if they have ever gotten complaints about their name.