On March 4, 2019, in Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___ (2019), the U.S. Supreme Court resolved a long-standing circuit court split by answering the question of whether copyright registration occurs at the time a copyright owner files an application to register the copyright or when the Register of Copyrights grants the copyright (or refuses to register a copyright).
In a unanimous opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court ruled that โregistration of [a] copyright claim has been madeโ within the meaning of the Copyright Act when the Copyright Office has acted upon a registration by either registering a copyright after examining a properly filed application or refusing to register it. 17 U.S.C. ยง411(a). In so holding, the Supreme Court rejected the โapplication approachโ that had been previously adopted by the Fifth and Ninth Circuits, siding with the Tenth and Eleventh Circuits that had adopted the โregistration approach.โ Proponents of the โapplication approachโ unsuccessfully argued that having a copy of the application, deposit materials, and fee on file with the Copyright Office was all that was necessary to satisfy the Copyright Actโs registration requirement before an infringement lawsuit could be filed.
Adoption of the โregistration approachโ means that a plaintiff must have a copyright registration (or refusal to register) in hand from the Copyright Office in order to file a copyright infringement suit. Copyright applications submitted electronically generally take between two and ten months to process. Applicants can pay a โspecial handling feeโ (currently $800) to expedite processing of applications that are the subject of pending or prospective litigation. For applications that qualify for special handling, the Copyright Office โmakes every effortโ to complete examination of the claim within five working days.
Key takeaways from this decision are as follows:
- A valid copyright registration or refusal is necessary prior to bringing a copyright infringement claim.
- For works that are unregistered at the time of infringement, copyright owners who want to bring suit quickly will need to request special handling, for an extra fee, to have their applications processed by the Copyright Office on an expedited basisโusually within five business days.
- To save on special handling fees, copyright owners should consider filing registrations for works that they believe are likely to be infringed as soon as possible.