Supreme Court Resolves Split in the Circuits Over Copyright Registration

Tuesday, March 5, 2019

The U.S. Supreme Court resolved a “split in the circuits” over the question of when a copyright owner may commence a lawsuit for copyright infringement.  Copyright protection attaches to original works of authorship (such as literary, musical, and dramatic works) fixed in a tangible medium of expression upon creation of the work by the author.  The author gains “exclusive rights” in the work immediately upon the work’s creation.  The Copyright Act entitles the copyright owner to institute a civil action for infringement of those exclusive rights, but as a precondition of instituting action requires that “registration of the copyright claim has been made.”  17 U.S.C. § 411(a).  The Copyright Office takes, on average, seven months to process applications for registrations.  The Supreme Court held that a copyright owner must wait until the Copyright Office’s registration process is completed before commencing a copyright infringement action.  However, the copyright owner can recover damages for infringement that occurred both before and after the registration, including during the time the author waits for the Copyright Office to complete its registration process.  Furthermore, the Copyright Office will process an application in as little as five days upon payment of an expediting fee, so that suit may commence quickly if necessary.  Fourth Estate Pub. Benefit Corp. v., LLC, No. 17-571, --- S.Ct. --- (Mar. 4, 2019).