SUPREME COURT CLARIFIES PRE-LITIGATION COPYRIGHT REGISTRATION REQUIREMENT.

The United States Supreme Court recently decided Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC et al., 586 U.S. _____ (2019), 2019 WL 1005829. The main issue addressed was the scope of the Copyright Act’s pre-litigation registration requirement under 17 U.S.C. § 411. That section states that, subject to certain limited exceptions, no copyright infringement lawsuit “shall be instituted until . . . registration of the copyright claim has been made in accordance with this title.” The various federal circuit courts, however, had been divided as to the meaning of “registration” and therefore also divided on the issue of when a copyright holder was entitled to file an infringement action.

Ultimately, two main camps arose–those who followed the “registration approach” and those who followed the “application approach.” The Eleventh Circuit, in which the case arose and which encompasses Georgia, Florida, and Alabama, followed the “registration approach.” An infringement action was not properly filed in the federal courts within the Eleventh Circuit until the Copyright Office acted on the copyright application, by either granting or denying registration. Other circuits, however, like the Ninth Circuit (encompassing California, Nevada, Arizona, Oregon, Idaho, Washington, and Montana), followed the “application approach.” This approach allowed a copyright holder to file an infringement suit so long as a completed application for the work at issue was on file with the Copyright Office.

The Supreme Court put an end to the split by holding that the “registration approach . . . reflects the only satisfactory reading of § 411(a)’s test.” Therefore, it is not enough to have merely filed an application; the application for registration must either be granted or denied before an infringement lawsuit can be filed. The Court’s opinion can be found here.

If you’re interested in learning more about the effect of this ruling, the copyright registration process, or copyright infringement litigation, please contact us.