U.S. Supreme Court Rules Copyright Owners Must Wait On Registration Before Filing Against Infringers

Walker, JeremyBy Jeremy T. Walker

In its March 4, 2019, opinion in Fourth Estate Public Benefit Corporation v. Wall-Street.com, the United States Supreme Court unanimously ruled that copyright owners must wait for copyright registration before pursuing lawsuits against accused infringers.  Under the Copyright Act of 1976, copyright protection attaches to “original works of authorship,” such as literary, musical or dramatic works as soon as they are fixed in any tangible medium of expression.  Thus, for example, once a novelist prepares a handwritten draft of her work, she immediately gains exclusive copyrights to that work.

Before pursing another for infringement of that copyrighted work, however, a copyright owner generally must comply with the Copyright Acts’ requirement that “registration of the copyright claim has been made.”   Prior to the Fourth Estate opinion, Federal Circuit Courts of Appeal throughout the country differed as to what that provision required.  Some circuits required only that a copyright owner submit the application for registration and the applicable fee, and once that had been done, the copyright owner could commence legal proceedings for copyright infringement based on the copyrighted work.   They did not have to wait for the United States Copyright Office to actually grant the registration.   In those circuits, it was not uncommon for copyright owners to wait until there was infringement to file their copyright applications and then file a lawsuit immediately or shortly thereafter.

Other circuits held that copyright owners generally could not commence legal proceedings until the United States Copyright Office had actually granted copyright registration for a particular work.  As Justice Ruth Bader Ginsburg noted in the Fourth Estate opinion, registration times currently average approximately 7 months from the time of application.  Accordingly, this ruling from the Supreme Court will dissuade the practice of some authors, photographers, musicians to wait until discovering infringement before applying for copyright registration, because in most cases they will now have to wait months before being able to file a lawsuit.  This decision provides further incentive to copyright owners to apply for copyright registration earlier rather than later.

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