SCOTUS Rules Copyrights Must Be Registered Prior to Filing Infringement Action

Earlier this year, the U.S. Supreme Court held that initiating a suit for copyright infringement requires that the infringed work copyrights must be registered imagemust actually be registered with the U.S. Copyright Office. Merely filing an application for registration is insufficient. Registered means registered. It does not mean applied-for.

The Copyright Act allows the owner of a copyright claim to register the claim with the Copyright Office. Section 411(a) of the 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.” U.S. copyright laws provide enhanced enforcement of financial incentives for copyright holders to register their works.

Many intellectual property lawyers believe that the ruling will impact dilatory copyright holders that seek temporary restraining orders or other injunctive relief. .

The matter was Fourth Estate Public Benefits Corp. v. pertained to a long-standing Circuit split about when a work is considered “registered.” At the time that a registration is filed with the Copyright Office? Or, when the registration has actually been processed by the Copyright Office and formally registered?

Petitioner Fourth Estate, a news organization, filed applications with the Copyright Office to register copyright claims for articles written by its journalists. Before the Copyright Office acted on the applications, Fourth Estate filed sued against for copyright infringement for displaying the articles on its website, allegedly without a license. moved to dismiss the suit, arguing that Section 411(a) barred Fourth Estate from suing for infringement until the Copyright Office approved or denied its application for copyright registration.

In a unanimous opinion, Justice Ginsburg wrote that only after the application has been “registered” and issued by the Copyright Office may a plaintiff initiate a lawsuit to enforce its copyrights.

“If 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.”

Registration of a copyright can take from approximately 6 months, or a few weeks if a plaintiff opts for expedited processing. Consequently, the most significant impact of the decision is upon those seeking injunctive relief, including TROs. The failure of dilatory copyright claimants to register early could leave them in intellectual property litigation limbo.

Takeaway: Copyright owners may obtain monetary relief to remedy any infringement that occurs before registration is complete. That relief could include actual damages or the infringer’s profits. However, Section 412 of the Copyright Act limits the availability of statutory damages when infringement occurs before the copyright holder registers its copyright claim. Copyright holders now have more incentive to seek early registration.

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Richard B. Newman is a FTC attorney and digital marketing lawyer at Hinch Newman LLP.

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