Registration is Required Before Suing for Copyright Infringement

The United States Supreme Court held in Fourth Estate Public Benefit Corp v., LLC, that the Copyright Office must either issue a (1) copyright registration certificate or (2) refuse to register a copyright before a copyright owner can sue for copyright infringement.

Prior to this decision, there was a split among the circuits concerning the interpretation of the first sentence of Section 411(a) of the Copyright Act which states, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

Essentially, the circuit debate was whether “…registration of the copyright claim has been made…” means that the copyright owner simply delivered a complete copyright application to the Copyright Office or that the Copyright Office issued a registration certificate.

The Supreme Court held that Section 411(a) requires a registration certificate or a refusal by the Copyright Office to register the copyright – either way, a decision from the Copyright Office concerning the copyright application.

That means if someone is unlawfully using your work, you must wait the many months (or years) it takes for the Copyright Office to review your application and send you a registration certificate before you can even file a complaint against the infringer. Copyright owners will no longer be able to file a copyright application immediately before they file a lawsuit for infringement. In fact, Justice Ginsburg addressed this very issue in the opinion:

[r]egistration processing times have increased from one or two weeks in 1956 to many months today. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. Unfortunate as the current administrative lag may be, that factor does not allow us to revise §411(a)’s congressionally composted text.

Be aware of this issue and file your copyright applications early – before there is an infringement. Otherwise, you will be left with the option of waiting months, or years, to receive a decision from the Copyright Office or paying a very steep fee to the Copyright Office for expedited review of your copyright application.

If you need help registering your copyright or filing a copyright infringement suit, Goodell DeVries can help. Contact Jim Astrachan at 410-783-3550 or Kaitlin Corey at 410-783-3526.