Later this month, the Supreme Court is scheduled to hear arguments regarding whether or not copyright owners must complete the registration process for their copyrights before filing a copyright infringement suit.

Copyright Litigation Registration Requirement

In Fourth Estate Public Benefit Corp v., the Supreme Court will decide whether an official copyright registration must be in place before a plaintiff can proceed with filing any type of copyright infringement litigation.  Currently, under Section 411(a) of the U.S. Copyright Act, civil actions cannot be filed until “preregistration” or “registration” of the copyright has been properly recorded.

Now, in the case at hand, the Supreme Court must decipher whether the Copyright Act should read the language to mean that “registration” has been met when an application is submitted, also known as the “application approach,” or only once the Copyright Office has actually initiated proceedings on the application, which is referred to as the “registration approach.”

Courts Dismiss Copyright Litigation Case On Basis of Application Not Yet Registered

In Fourth Estate, Fourth Estate Public Benefit Corporation (“Fourth Estate”) took action against for allegedly infringing upon its copyright in 2017.  In the U.S. District Court for the Southern District of Florida, Fourth Estate complained that had failed to remove content belonging to Fourth Estate after a licensing agreement between the two parties fell through. argued for dismissal of the complaint altogether by relying on the argument that litigation could only proceed after Fourth Estate’s copyright application had been approved.  Both the district court and appeals courts agreed, holding that the litigation could not go forward because Fourth Estate’s copyright application had not been approved yet by the Copyright Office.

Courts Split on Copyright Litigation Registration Requirement

Because other district and appeals courts have decided the same issue differently, the Supreme Court is expected to solve whether it is the “application approach” or the “registration approach” that is required by the U.S. Copyright Act.  While the split among courts has been an ongoing problem, copyright owners have generally not been adversely impacted by the indecision in the past.

This would drastically change, however, if the Supreme Court were to decide that the Copyright Act requires formal registration (i.e., the “registration approach”) because it could mean significant financial hardship for new artists, especially if they seek to have the application review process expedited, as that would cost an additional $800.

Registration Approach v. Application Approach

Experts in the field are divided as to how the Supreme Court will decide.  Some experts believe that the “registration approach” is superior because it will make the law more predictable for copyright owners.  Supporters of the “application approach,” however, believe that requiring formal registration would be an unnecessary onus on copyright creators, especially in today’s digital age.  Similarly, some experts argue that the increased costs would have a chilling effect on copyright protection, discouraging plaintiffs from pursuing litigation because they simply cannot afford a registration in the first place.

For more information on this topic, please visit our copyright protection service page, which is part of our Software & Copyrights Practice.

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