In a unanimous Supreme Court decision, copyright owners seeking protection must now wait for the Copyright Office to act on an application for registration before they can pursue infringement claims in court. Based on the recent Supreme Court ruling, copyright registration occurs – and a copyright owner may commence a lawsuit – when the copyright office ASSIGNS A REGISTRATION NUMBER, or declines to assign one, to an applied for work. The days of simply filing an application and claiming a pending registration in order to have standing in an infringement case are gone.
What does this mean? Well, the decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com has settled a long standing circuit split about when registration occurs. This decision now requires a copyright owner to wait until the U.S Copyright office has actually approved or refused their registration before they can file an infringement suit in court. Some Circuit Courts previously held that mere filing of an application for registration was sufficient to give an owner standing to bring an infringement suit. This was known as the “application approach.” Copyright owners would simply apply for copyright registration and have standing to immediately file their infringement suits. After Fourth Estate, this “application approach” will no longer be allowed. Authors, music publishers and record labels are among the authors of creative works who have already voiced their displeasure with the Supreme Court’s decision; highlighting that this will severely impact their ability to protect the fruits of their labor. They have to wait around for a registration number while their works are being infringed, rather than having the immediate access to court as with the “application approach.”
So, if the creators of original works, whom the Copyright Act was created to protect, disagree with the decision, why did the Supreme Court rule the way they did? In a nutshell, not only will this decision make it easier and more efficient to keep a comprehensive public record of ownership of copyrighted works, but upon a comprehensive reading of the Copyright Act statute Justice Ginsberg highlights that the registration approach was what lawmakers had in mind.
This ruling is not taking away the protections offered to a copyright owner, it merely limits when a copyright owner can access the courts for relief. Once registration has been approved and the owner can file suit, damages can still be awarded for both pre and post registration infringement (though statutory damages are available only post registration, and often exceed pre-registration actual damages).
There are a couple of options for authors of creative works concerned about imminent infringement of those works. First, in limited circumstances an author of a creative work may file for preregistration to protect that work. Second, an author of a creative work may pay an expedited filing fee to speed registration from the six months or more which can be typical processing times, to less than a couple of weeks.
We encourage authors of creative works to apply for their copyright registrations as early as possible, and to consider submitting to the expense of expedited registration handling if the work is being infringed, or if there is a likelihood the work will be infringed immediately after publication.
For more information on how to properly protect your copyright or any other intellectual property needs, contact us through our website form to schedule your free consultation.