Supreme Court Makes Early Copyright Registration Crucial

Section 411(a) of the Copyright Act provides that a suit for copyright infringement may not be filed “until preregistration or registration of the copyright claim has been made” or “refused.” The 5th and 9th Circuits had held that an infringement lawsuit could be initiated upon filing a copyright application (the “application approach”). The 2nd, 10th, and 11th Circuits required a claimant to wait until the Copyright Office registered the copyright (the “registration approach”).

In a March 4th, 2019, unanimous decision the Supreme Court resolved the split among the circuits and held that registration under § 411(a) occurs when the Copyright Office grants registration, not when an application is filed. Fourth Estate Public Benefit Corp. v., LLC, 586 U.S. ___ (2019).

Writing for the Court Justice Ginsburg reasoned that under the “application approach” refusal of an application would be “superfluous,” and that the “registration approach” is the “only satisfactory reading” of the statute. Therefore, copyright owners must now wait for registration before filing an infringement claim. The Court acknowledged that the Copyright Office often takes “many months” to process applications, but found that this was due to Congress’s failure to address staffing and budgetary shortages, and was a problem the “courts cannot cure.” The Court did, however, provide that under limited circumstances, including for works “… of a type vulnerable to predistribution infringement,” such as movies or music, a party may file suit before registration.

The Court also ruled that a copyright owner can retroactively recover actual damages or the infringer’s profits. Justice Ginsburg held that “[i]f infringement occurs before a copyright owner applies for registration, that owner may eventually recover damages for the past infringement, as well as the infringer’s profits. . . . She must simply apply for registration and receive the Copyright Office’s decision on her application before instituting suit.” The Court did not, however, address the effect of its decision on the more typical remedy, statutory damages. Section 412 of the Copyright Act limits the availability of that remedy when infringement occurs before the copyright holder registers its claim.

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