Copyright Application vs. Copyright Registration

Today, the U.S. Supreme Court announced that it will take on the issue of whether a copyright registration or a copyright application is required before bringing a copyright infringement suit.

Currently, depending on the location of your copyright lawsuit, some courts require a copyright registration.  Other Courts simply require that you have filed a copyright application prior to bringing suit.  This means there is a split among the Federal Courts as to whether a copyright owner must fully register their works before suing.

Copyright Law does not require a registration to have a copyright.  However, before you can bring a copyright lawsuit you must have an application.  According to Section 411(a) of the Copyright Act:

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. In any case, however, where the deposit, application and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.

On its face, copyright registration must have been made prior to bringing suit.  However, various federal courts have interpreted that requirement differently.

Courts in favor of allowing suit based on a copyright application. Some courts reason that copyright applications are routinely granted.  The is the only barrier to receiving a registration is the application.  In addition, because the Copyright Office is backlogged, the filing of the application is enough.  Requiring a registration will punish the victim of a potential copyright infringement.  Refusing a lawsuit until their registration is approved will punish them even further.

Courts in favor of the copyright registration requirement.  Some courts believe the copyright law is clear on its face. According to Section 411, registration ….[must] be made before a lawsuit can be filed.  There is no ambiguity or wiggle room.  Even if the copyright registration process takes months, the courts can not be used to settle a copyright dispute until a registration is received.

It is unclear how the Supreme Court will respond.  I suspect the Court will take a literal approach to the registration requirement.  Copyright lawsuit filings have been increasing since 2009.  Prior to 2009 there were only thirty thousand copyright cases filed.  Since 2009 that number has grown annually, reaching over five thousand cases in 2015. It is unclear how many of those lawsuits involve registered works, but if registration is required the number of copyright lawsuits will decrease which will ultimately decrease the number of cases the courts will have to decide.

The Supreme Court granted the petition for writ of certiorari in the case of Fourth Estate Public Benefit Corp. v. LLC.  If you have a copyright case which involves a registered or unregistered copyrighted work, you should contact one of our copyright attorneys.